Married Women's Property Act, 1870, sect. 12. Injustice caused by by her before marriage, whether he had any property with her or not, but this liability ended with her death unless he took out administration to her choses in action, when he would still be liable as administrator to the extent of the assets (k), but the rule has now been very materially altered, as is next stated. By the Married Women's Property Act, 1870 (1), it was provided that " a husband shall not by reason of any marriage which shall take place after this act has come into operation (m), be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy such debts as if she had continued unmarried." But a very short trial of this provision showed that this provision. as it stood it was too extensive, for it created a possible manifest injustice. It provided that the husband should never be liable; but yet in many cases the husband might have property through his wife, and it not being to the wife's separate use, the creditor had no hold on it. Supposing that a woman possessed of £1000, no separate estate, and owing several debts, married, the consequence under this provision would be that the husband would take the £1000 by the act of marriage, and through him the wife would reap the benefit of it, and yet the creditors would not have any claim against either the husband, the wife, or the property, though manifestly in common justice they ought to be paid out of the £1000. It will be noticed, however, that this provision did not apply to the liability of the husband where the marriage had taken place prior to the coming into operation of the act (9 Aug. 1870). (k) Chitty on Contracts, 157. He was also liable for her torts committed before marriage, as well as those committed during coverture. Addison on Torts, 55, 107. (2) 33 & 34 Vict. c. 93, s. 12. Women's Act, 1874. The injustice of the provision in the Married Wo- Married men's Property Act, 1870, was, however, thoroughly Property Act remedied, for, by the Married Women's Property Act Amendment Amendment Act, 1874 (n), it was provided that "so much of the Married Women's Property Act, 1870, as Sect. I. enacts that a husband shall not be liable for the debts of his wife contracted before marriage is repealed, so far as respects marriages which shall take place after the passing of this act (o); and a husband and wife. married after the passing of this Act may be jointly sued for any such debt" (p): but "the husband shall Sect. 2. in such action and in any action brought for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made by the wife before marriage, be liable for the debt or damages respectively to the extent only of the assets hereinafter specified; and, in addition to any other plea or pleas, may plead that he is not liable to pay the debt or damages in respect of any such assets as hereinafter specified; or confessing his liability to some amount, that he is not liable beyond what he confesses; and if no such plea is pleaded, the husband shall be deemed to have confessed his liability so far as assets are concerned” (9). The act also goes on to provide that, "if it is not Sect. 3. found in such action that the husband is liable in respect of any such assets, he shall have judgment for his costs of defence, whatever the result of the action may be against the wife" (r); and that "when a hus- Sect. 4. band and wife are sued jointly, if by confession or otherwise it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the (n) 37 & 38 Vict. c. 50. (9) Sect. 2. (r) Sect. 3. Married Summary as husband for wife's antenuptial debts. husband is liable shall be a joint judgment against the husband and wife; and as to the residue (if any) of such debt or damages, the judgment shall be a separate judgment against the wife" (s). It will be noticed that the provisions of this act do not apply to marriages that took place prior to its passing (30 July 1874). Both the before-mentioned statutes have however now been repealed, except as regards the right and liabilities of persons married before 1st January 1883 (t), as to whom the law remains as above stated. In substance, however, the provisions of the Act of 1874, on this point, are re-enacted (u). Any question, therefore, as to the liability of the to liability of husband for his wife's ante-nuptial debts must depend on the date of the marriage: if it took place before the 9th of August 1870, he is liable for them all; if between that date, and the 30th of July 1874, he is not under any liability in respect of them; and if since this latter date, he is liable to the extent of the assets or property which he has or acquires with or through his wife. 2. As to contracts made tation. Secondly, as to contracts made after marriage and during cohabi- during cohabitation. Marriage produces a general disability on the part of the wife to contract, so that no contract that she may make will be binding on her, and any advantage she may acquire vests in her husband. But some contracts of a married woman may bind her separate estate in equity (x); and, besides this, there (s) Sect. 4. (t) 45 & 46 Vict. c. 75, s. 22. (u) Sects. 13, 14, 15. (x) See Hulme v. Tenant, 1 White and Tudor's Leading Cases in Equity, 521. are several exceptions to the rule, which are chiefly as follows: can a married I. Where the husband is banished, or transported, Cases in which or suffering sentence of penal servitude, the wife contract, sue or be sued, as if she were a feme sole. 2. Where the husband has not been heard of for a period of seven years, she may also do so, as he is then. presumed to be dead (y). 3. Where a judicial separation has been obtained under the Divorce Act she may also do so (2), or where under the Matrimonial Causes Act, 1878, a separation order has been obtained, which that act provides shall have the same effect as a decree of judicial separation (a). 4. Under the Divorce Act (b) a married woman may obtain an order, called a protection order, when she has been deserted by her husband, protecting her earnings or property acquired since desertion from her husband and persons claiming under him. Such order may be obtained from the Divorce Division of the High Court of Justice, or from the police magistrate, or justices in petty session; but if from either of the latter, the order has afterwards to be registered within ten days from the making with the registrar of the county court within whose jurisdiction the wife is resident. 5. By the Married Women's Property Act, 1882 (c), a married woman may generally contract in respect of all separate property (d), and as to what will be her separate property, everything real or personal acquired by any married woman on or since 1st January 1883, (y) See Nepean v. Doe, 2 S. L. C. 584; 2 M. & W. 894. (2) 20 & 21 Vict. c. 85, s. 25. Of course if an actual divorce takes place the woman is again a feme sole. woman is in the position of a feme sole. Married woman is her separate property (e), as also with regard to women married on or since that date is property they are possessed of at the time of the marriage (f). All deposits in post-office and other banks, annuities, stocks, or funds, in a married woman's name alone, or jointly with others; and also policies of insurance effected by her on her own or her husband's life are also her separate property (g). 6. By the same act a married woman may act as an executrix, or administratrix, or trustee, in the same way as a feme sole (h). It has been decided that a married woman cannot cannot be made be made a bankrupt in respect of a debt for which she bankrupt is liable even though she has a separate estate (i); but unless trading it is now provided by the Married Women's Property Act, 1882, that if a married woman is carrying on a trade apart from her husband, she shall in respect of her separate property be liable to the bankrupt laws (k). apart from husband. Married woman suing or defending. A married woman usually sues either together with (e) 45 & 46 Vict. c. 75, s. 5. (f) Sect. 2. (g) Sects. 6, 9, II. As to the principal provisions contained in the Married Women's Property Act, 1870 (33 & 34 Vict. c. 93), ss. I, 2, 10, they are repealed except as to matters before 1st January 1883. Under that act the following properties were to be thereafter to the separate use of a married woman, viz., her wages and earnings acquired in any occupation carried on separately from her husband; any deposit made by her in her name in a savings bank; any sum of £20 or upwards in the public stocks transferred into her name; any fully paid-up shares in companies and other institutions to which no liability is attached transferred to her name, and any policy on her own or her husband's life expressed on its face to be to her separate use. By the same Act (sects. 7, 8) it was provided with regard to women married after the passing of the act (9 August 1870) that any personal property coming to a married woman as a next of kin under an intestacy; any sum, not exceeding £200, coming to her under a deed or will; and the rents and profits of any freehold, copyhold, or customary property descending to her, were to be to her separate use. (h) 45 & 46 Vict. c. 75, ss. 18, 24. (i) Ex parte Holland, In re Heneage, L. R. 9 Ch. App. 307; 43 L. J. Bk. 85; Ex parte Jones, In re Grissell, L. R. 12 Ch. Div. 484; 48 L. J. Bk. 109. (k) 45 & 46 Vict. c. 75, s. 1 (5). |