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posal of their own estates, unfettered by the legal claims of children, an ante-nuptial contract is of paramount importance.

§ 120. Where the intending husband and wife are domi- Domicile ciled in different countries the law by which the marriage contract is regulated is that of the husband's domicile at the time of the marriage,1 but this is often made matter of convention, or the facts may show that a different rule was intended. The capacity of the wife to make the contract is, however, determined by her domicile of origin, not by that of her husband.4


§ 121. A marriage contract is generally a bilateral deed, Deed may be but this is not necessary. In this, as in many other cases, a bilateral contract may be expressed in a unilateral deed.5 Strictly speaking, a contract of marriage should be Time of executed before the banns are proclaimed, but this is not

Dicey on Domicil, p. 274.

2 See Earl of Stair v. Head, 29 Feb. 1844, 6 D. 904; Este v. Smyth, 18 Beav. 112; Story, Conflict of Laws, § 184; Chamberlain v. Napier, L.R. 15 Ch. D. 614; Phillimore, Principles and Maxims of Jurisprudence, p. 170; Dicey on Domicil, p. 274; Pothier, Traité du Douaire, $$ 18-20.

This is the same as the

3 Corbet v. Waddell, 13 Nov. 1879, 7 R. 200. 4 Cooper v. Cooper, H. of L. 13 App. Ca. 88. capacity to enter into marriage itself. Dicey on Domicil, p. 202.

5 See per Lord Deas in Forrest v. Robertson's Trustees, 27 Oct. 1876, 4 R. at p. 37.

6 Spotiswood, Stiles, p. 176 (Edinburgh, 1708). The reason of the rule as to execution before the banns was that, in law, the proclamation of banns is so far equivalent to marriage itself that after that time the intended husband must be consenter to any deed by the woman affecting her property and consequently his rights which accrued on marriage. See Blair's Trustees v. Malloch, 1776, M. 5846; Murison v. Dick, 10 Feb. 1854, 16 D. 529; Bell, Pr. § 1551; Fraser, Husband and Wife, i. 680. Hence in the marriage contract she disponed her property with his consent. See Countess of Strathmore v. Bowes, White and Tudor, L.C., i. 471 (6th ed.). That consent is of little importance since the passing of the Married Women's Property Act, as the husband takes


Marriage contracts do

observed in practice. As a rule, the deed is executed at least one day before the wedding; but a contract, the terms of which are settled before marriage, will probably not lose its ante-nuptial character by being signed after the ceremony.1 If a contract is executed after marriage in fulfilment of a prior obligation, it will be held equivalent to an ante-nuptial deed.2

§ 122. It was decided in one case3 that in order to make a not require to marriage contract binding upon the creditors of the parties,

be intimated

to creditors of the parties.

Object of post-nuptial contracts.

it is not necessary that intimation of its terms be made to the creditors, but it is not easy to see how the doctrine of intimation can apply, or how intimation could be made if it did. This, of course, does not apply to the completion of a title to property or securities, conveyed under the contract. When intimation is required as an incident of title, it must be given as in the case of an ordinary assignation.*

Creditors must be on their guard against marriage contracts as against other latent obligations. They are not entitled to assume that a man married without a marriage contract, and they should make inquiry.5

§ 123.


"To supply the want of a contract in runaway or nothing by the marriage, except his contingent right to jus relicti and courtesy.

1 Cooper v. Cooper's Trustees, 9 Jan. 1885, 12 R. 473, and see per Lord Watson, S.C. L.R. 13 App. Ca. at p. 103. Lord Macnaghten doubted this proposition, ib. p. 107. The other judges did not share this doubt. 2 Brown v. Govan, 1 Feb. 1820, F.C.

3 Rollo v. Ramsay, 28 Nov. 1832, 11 S. 132.

4 Tod's Trustees v. Wilson, 20 July, 1879, 7 M. 1100; Campbell's Trustees v. Whyte, 11 July, 1884, 11 R. 1078; More v. Giersberg, 1 June, 1888, 15 R. 691.

Per Lord Meadowbank and others in Herries, Farquhar & Co. v. Brown, 9 March, 1838, 16 S. 963; and Lord Mackenzie in Rollo v. Ramsay, 28 Nov. 1832, 11 S. 132. Supra, § 20.

hasty marriages," says Spotiswood, "the married couple may cause write one of the same tenor with an ante-nuptial contract, which, by law, in so far as the provisions are rational, will bind parties to the observance of the conditions."1 Nowadays runaway couples do not as a rule much concern themselves about settlements. Post-nuptial contracts are now generally the anxious effort of sober couples to place a portion of the husband's property beyond the reach of his creditors and the risks of trade.2


§ 124. Provision is made for wife and children, as in the Scheme of the case of an ante-nuptial contract, but as marriage no longer exists as consideration, it is impossible to give the same protection as in a deed entered into before marriage. If, however, it complies with certain conditions necessary to render it effectual, a post-nuptial is just as binding as an ante-nuptial contract and the Court will not allow the interests it creates to be defeated.3

1 It corresponds with the Carta Compositionalis of the Middle Ages, granted by a husband who had married a wife without consent of her parents. Such a deed commenced, "Dilectissime atque amantissime conjuge mea," showing clearly that it was post-nuptial. Rozière, Recueil Général des Formules, t. i. pp. 290-294 (Paris, 1859); Marculfi, Formulae Veteres, ii. No. 16. The libellus dotis uses the phrase "dilecta sponsa mea." See Laboulaye, Recherches, p. 83.

2 Lord Brougham, however, seems to have been much of the same opinion as Spotiswood. He refers to the frequency of clandestine marriages in Scotland, and says that it is "a highly important and exigent duty in such cases to provide for the interests both of the woman and the issue of the marriage. Dickson v. Cuninghame, 1831, 5 W. and S., at p. 695.

3 Smitton v. Tod, 12 Dec. 1839, 2 D. 225; Allan v. Kerr, 21 Oct. 1869, 8 M. 34. In that case Inglis, L.P., remarked, "The deed in question is a post-nuptial contract, which, we have been told, is the same as a mutual disposition and settlement with a clause of revocation. I attach no weight to that argument. We all know well what a post-nuptial contract is." See supra, § 116, note.


Power of

withdrawal of portion

the settle


The conditions to be observed in order to render a postnuptial contract binding, in a question with creditors, will be considered in the next chapter.1



§ 125. As the tying up of a wife's whole property, present Property from and future, is often productive of inconvenience, power is sometimes given to her to withdraw a specified portion from the trust, so that she may have it at her own disposal. power may be absolute, or it may be conditional upon her being the survivor of the spouses, or being the survivor and being about to re-marry, or it may be dependent upon the number of the children of the marriage, or other circumstances.


of interests on

§ 126. It is also common in marriage contracts to restrict re-marriage. the life interest of a surviving spouse to a smaller amount in the event of his or her re-marrying, or to forfeit the life interest, and substitute a fixed annuity of smaller amount. Sometimes, too, the provisions in favour of the spouses are diminished in the event of the existence of children. What was the result in such a case if the husband became bankrupt was at one time matter of controversy; but it is now settled that the husband's creditors cannot claim as against the children for the sum set free by the restriction. The contention of the creditors was that this accresced to the fee, and that the children were heirs of provision of the father, but this was overruled.2

Power of division or

§ 127. When a fund is destined to children, a faculty or appointment. power of division or appointment is generally reserved to the parents together or in succession, under which they can divide

1 Infra, § 187 et seqq.

2 Blairs v. Bell, 1782, M. 2280; Duff, Treatise on Deeds, p. 195.

think proper.

the fund amongst their children in such proportions as they The power is generally made exercisable by any deed or writing inter vivos or mortis causa; but as "deed" has not the limited and technical meaning that is attached to it in England the latter words are hardly necessary, except, when by the use of the one expression only, it is intended to limit the exercise of the power to an inter vivos deed or to a testamentary deed as the case may be.


Issue of

It is no objection now to the execution of such a power that any object of the power has been altogether excluded; if, however, it is desired to give the parent power to restrict a child's share to a liferent merely, with fee to his issue, this must be expressly reserved or conferred upon him, otherwise it is impossible to appoint to such issue.2 children. "A power of apportionment however created, and to whatever estate it may relate, can be nothing more or less than a power of apportionment. It enables the holder of the power to divide the fund among the objects of the power in such proportions as he thinks proper; but it does not enable him to alter the quality of the estate which is settled on them by limiting an estate of fee to an estate of liferent, nor to confer a benefit on persons who are strangers to the power.' Under a power to appoint among children, interests may, however, be given to grandchildren by way of settlement, with concurrence of their parent who is an object of the power.1

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It is the English practice, therefore, to frame a contract of 137 and 38 Vict. c. 37; Mackie v. Gloag's Trustees, 1883, 10 R. 746, and in H.L. L.R. 9 App. Ca. 303.

2 Gillon's Trustees v. Gillon, 8 Feb. 1890, 17 R. 435.

3 Per Lord Rutherfurd Clark in Gillon's Trustees v. Gillon, supra. 4 White v. St. Barbe, 1 V. & B. 399; Cuninghame v. Anstruther, 1872, L.R. 2 Sc. App., at p. 234; Mackie v. Gloag's Trustees, 2d case [reported as Mackie v. Mackie's Trustees] 4 July, 1885, 12 R. 1231; Lennock's Trustees v. Lennock, 16 Oct. 1880, 8 R. 14; cf. Bell, Pr., § 1988.

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