Contracts between CH. VIII. s. 4. case provided for by sect. 13 of the Act of 1882, that as between husband and wife, unless there be any contract between them to the contrary, her separate property should be liable for contracts; but this is a contract by way of settlement. Husband and Further, marriage had the effect of rendering a previous conveyance of the wife of her property to a third person in fraud of her husband's marital right voidable in an action by him, but as the husband's interests are now very slight, it would seem that this doctrine is now obsolete (n). Marriage settlements (which must by the Statute of Frauds be in writing) are shortly treated of in Ch. XVIII., sect. 2, post, and it may be mentioned here that misrepresentation by either party as to antenuptial conduct or extent of property will avail to set aside the settlement on the ground of fraud, inasmuch as the marriage, which is indissoluble, is the true and main consideration; and that if a marriage be induced by the promise of one of the parties to leave property by will to the other, the promise may be enforceable at any time after the marriage (o). (b) Contracts between Husband and Wife during Marriage. At common law husband and wife being one person (p) could not contract with one another (q), but where a wife has separate property she can contract with her husband just as much as with any one else (), and in such contract she is subject to the requirement of the law of ordinary contracts (s). A postnuptial settlement between husband and wife is not necessarily voluntary; if husband and wife, both having interests, agree to give up something that is a contract for consideration, and the settlement following it will be good as against purchasers and creditors (t); the Court will not enter into the question of consideration, but in effect the question is whether the transaction is one of bargain or of gift merely (u). And having this power to contract with her husband as with any one else with reference to her separate estate, the wife can enforce such a contract, under sect. 12 of the Act, which (n) Strathmore v. Bowes, Wh. & T. L. C., and cases there noted. (0) Synge v. Synge, [1894] 1 Q. B. 466. (p) As to how far husband and wife are still one person, see In re March, Mander v. Harris (1884), 27 Ch. D. 166; Wennhak v. Morgan (1888), 20 Q. B. D. 635. (q) See per Lords Selborne and Blackburn in Cahill v. Cahill (1883), 8 App. Cas. 420. (r) Butler v. Butler (1885), 16 Q. B. D. 374, C. A. (s) See Williams v. Walker (1882), 9 Q. B. D. 576. (t) In re Foster and Lister (1877), 6 Ch. D. 87; Teasdale v. Braithwaite (1887), 4 Ch. D. 85; 5 Ch. D. 630; following Hewison v. Negus (1853), 22 L. J., Ch. 655, App.; and cf. cases there referred to. (u) Per Turner, L.J., in Townend v. Toker (1886), L. R., 1 Ch. 446, at p. 458. provides that she should have the same civil remedies against all CH. VIII. s. 4. persons, including her husband, for the protection and security of her separate property, as if such property belonged to her as a feme sole (x). 66 And with regard to dealings between husband and wife, the right of the wife to prove as a creditor in her husband's bankruptcy is restricted by sect. 3 of the Act of 1882, providing that any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on by him or otherwise, shall be treated as assets of the husband's estate in case of his bankruptcy, under a reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before all claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied." But this section is not retrospective so as to affect previously existing rights (y). It is only where the husband is a trader that the wife's rights to prove in his bankruptcy are postponed; and even then, if the loan by the wife to the husband trader was for purposes unconnected with his trade or business, she can prove in full (2), and the words "or otherwise" in the section quoted seem either to bear no meaning, or they must be construed as words ejusdem generis in the "trade or business" preceding (a). And it has been decided that in a husband's bankruptcy the burden of proof is on the wife to show for what purpose she lent her husband the money. The natural inference would be that she lent him the money for the purpose of his trade or business, and it rests with her to prove the contrary (b). Nor can she vote until the other creditors have been paid. Neither can "or otherwise " be applied to the words "carried on by him," for it is only where the husband is the sole trader that she is postponed; if she lends money to a firm in which he is a partner, she can prove in full, for the section is to be construed strictly (c). A widow, as administratrix, can exercise her right of retainer so as to get priority for her debt, even although it were lent to the husband for his trade (d). () As to what actions are for the protection of separate property, see R. v. Lord Mayor of London (1886), 16 Q. B. D. 772, referring to Summers v. City Bank (1874), L. R., 9 C. P. 580. (y) Ex parte Home (1886), 54 L. T. 301. (z) Ex parte Tidswell, In re Tidswell (1887), 56 L. J., Q. B. 548. (a) See the observation of Cave, J., on these words in Ex parte Tidswell, supra ; but for a contrary view, see per Chatter- (b) Per Cave, J., in Ex parte District (c) Ex parte Nottingham, In re Tuff (1887), 19 Q. B. D. 88. (d) May, In re (1890), 45 Ch. D. 499. Contracts between Husband and Wife. Husband's bankruptcy, right of wife to prove. Sect. 3 of Act of 1882. CH. VIII. s. 4. Deeds). Validity of contract. (c) Separation Deeds. The validity of separation deeds depends on two legal doctrines: first, that a wife possessing separate estate can contract with (Separation reference to that separate estate with her husband as much as with any one else; and secondly, that as husband and wife could always commence a matrimonial suit against each other, a power to compromise such suit is reasonably incident to the power to commence them; and the compromise of a matrimonial suit is a mutual consideration for such a contract, whether the husband contracts to pay, or the wife gives up property (e). Separation deed brought about by fraud of trustee, void. Facilitating divorce. It has been held that a separation agreement and the contract to live separate will be valid, although no action has been commenced or threatened, and that the issuing of a writ is a mere technicality, and that such an agreement binding not to sue is consideration for a contract mutually binding on either not to enforce cohabitation (f). Articles of separation entered into after the institution of an action may be enforced by specific performance by ordinary execution of deed with all usual and proper clauses (g); the compromise may be made a rule of Court (h); no trustee is necessary, and it may be merely verbal (i). But a separation deed brought about by the fraud of the trustee who had committed adultery with the wife, and concealing this from the husband induced him to enter into the separation deed, is void (k); though where the trustee was the wife's father and concealed from the husband the fact that his wife was then by him (the husband) pregnant, this was not sufficient to invalidate the deed, fraud not being alleged or proved (1); and likewise, when the wife, in order to be at liberty to live in adultery, and concealing this from the husband, induced him fraudulently to execute a separation deed, this will be invalid (m). A stipulation in articles of separation that the parties would facilitate a divorce is not merely void in itself as against public (e) Cahill v. Cahill (1883), 8 App. Cas. 420. (f) Besant v. Wood (1879), 12 Ch. D. 605, per Jessel, M.R.; Aldridge v. Aldridge (1888), 13 P. D. 210, per Hannen, Pres.; McGregor v. McGregor (1888), 21 Q. B. D. 424, C. A.; but Lord Selborne reserved his opinion on this in Cahill v. Cahill (1883), 8 App. Cas. 420. (g) Wilson v. Wilson (1848), 1 H. L. Cas. 538; 5 H. L. Cas. 40; Gibbs v. Harding (1870), 8 Eq. 490; 5 Ch. 336; Hart v. Hart (1881), 18 Ch. D. 670; and see form of decree in Seton on Decrees, vol. ii. (h) Smythe v. Smythe (1887), 18 Q. B. D. 544. (i) McGregor v. McGregor (1888), 21 Q. B. D. 424, C. A. (k) Evans v. Edmonds (1853), 13 C. B. 777. (1) Kendall v. Webster (1862), 1 H. & C. 440. (m) Evans v. Carrington (1860), 2 De G., F. & J. 481, per Lord Campbell, C., following Evans v. Edmonds, supra; see remarks of Cotton, L.J., Fearon v. Earl of Aylesford (1884), 14 Q. B. D. 792, C. A. policy, but so objectionable that it vitiates the whole deed (n); CH. VIII. s. 4. and an agreement for future separation is entirely void (0). The provisions and construction of separation deeds vary of course considerably according to the intention of the parties and the language of each particular deed, but the usual stipulation may be divided into (1) the separation itself, that parties should live separate (i.e., will not sue for restitution of conjugal rights), and will not compel one another to cohabit, and will not molest; (2) pecuniary covenants, that the husband will pay the wife an annuity, he reconveying her property to her, and she releasing her dowry and interests under the settlement to him, and a covenant by a trustee to indemnify the husband against the debts. The covenants "not to molest or interfere with way of living," will not prevent either party from suing for a divorce, for any fresh subsequent matrimonial offence; it is not a licence to commit adultery, although it may estop a wife from suing for increased alimony (p). Even taking proceedings in a foreign Court to procure a divorce is not of itself a breach of the covenant (q). But where an action has been actually commenced and then compromised or even threatened, and the cause of action recited. in the separation deed, the parties cannot sue again for the same offence nor will subsequent misconduct revive previous offences by analogy to condonation (1). Contracts between Husband and Covenant not to molest, no bar to divorce action. But a separation deed may sometimes amount to connivance or Bar to licence to commit adultery (s), in which case it will be void, and it has damages, been held to be a bar to recovering damages against an adulterer (t). query. Under a covenant not to molest or interfere, the Courts will Molestation actively interfere and prevent by injunction a husband following by husband his wife and attempting to visit or take possession of her (u). (n) Hope v. Hope (1857), 8 De G., M. & G. 73; cf. Hunt v. Hunt (1884), 28 Ch. D. 606, C. A. (0) Hindley v. Westmeath (1827), 6 B. & C. 200; Westmeath v. Salisbury (1831), 5 Bli., N. S. 339 (H. L.); Cartwright v. Cartwright (1853), 3 De G., M. & G. 982; H. v. W. (1857), 3 K. & J. 382; Merryweather v. Jones (1864), 4 Giff. 509. (p) Thomas v. Everard (1861), 6 H. & N. 448; Williams v. Bailey (1866), 2 Eq. 731; Brown v. Brown (1868), 7 Eq. 185; Morrall v. Morrall (1881), 6 P. D. 98; Gandy v. Gandy (1882), 7 P. D. 168, C. A.; Tress v. Tress (1887), 12 P. D. 128; Moore v. Moore (1887), 12 P. D. 193; Izard v. Izard (1889), 14 P. D. 45; and cf. Rowley v. Rowley (1866), L. R., 1 Sc. & Div. Ap. 63; J. G. v. H. G. (1870), 33 Maryland, 401 (Amer.), but decided on English principles on the citation of English cases. (2) Hunt v. Hunt, [1897] 2 Q. B. 547, C. A., in which the husband sued in Texas for divorce on the ground of desertion previous to the separation deed. (r) Wilson v. Wilson (1848), 1 H. L. C. 538; 5 H. L. Ca. 40; Rowley v. Rowley (1866), L. R., 1 Sc. & Div. Ap. 63; Flower v. Flower (1871), 25 L. T. 902; Rose v. Rose (1883), 8 P. D. 98, C. A. ; Aldridge v. Aldridge (1888), 13 P. D. 210. (s) Ross v. Ross (1869), L. R., 1 P. & M. 734; see the cases thereon well summarised in Bishop on Marriage and Divorce (Amer.), 6th ed., vol. ii., 25 and 25 a. (t) See Izard v. Izard (1889), 14 P. D. 45, and the cases collected in note thereto. (u) Sanders v. Rodway (1852), 16 Beav. 207; and as to what is interfering, see, too, Besant v. Wood (1879), 12 Ch. D. 605, at p. 627, per Jessel, M. R. will be re strained. Contracts between Husband and Wife (Separation Deeds). Pecuniary covenants. CH. VIII. s. 4. That adultery on the part of a wife does not amount to molestation is settled by Fearon v. Earl of Aylesford (x), the main result of which seems to be that "molestation" must be intentional. The pecuniary covenants are usually by the husband to pay an annuity, and by the wife to give up property or claims. As to the wife, she can, as before said, enter into any contract with reference to her separate estate, and the consideration above. referred to will support such a contract; but she cannot enter into a contract with her husband, which if entered into by her with a third party would be void, and therefore, though she can relinquish any of her separate estate as to which her anticipation is not restrained, and deal with reversions or her non-settled realty by deed acknowledged, she cannot render herself personally liable to pay money, and acts requiring to be acknowledged must be acknowledged (y). Validity of separation against creditors, query. Effect of adultery. Covenants by a husband to pay an annuity can be enforced against him by the wife or the trustees; and a breach by her may be no bar to an action against him on the covenants, for unless there is something to the contrary each covenant is independent (2). Whether or not a separation deed will be good as against creditors of and purchasers from the husband, depends on the circumstances of each particular deed, and no fixed rule can be laid down (a): the former law took as a test of valuable consideration the indemnity by the trustees to the husband against the wife's debts, but as we have seen, trustees are not necessary to a separation deed; and the deed itself-see ante, p. 208-prevents the wife from pledging the husband's credit. But it has been decided that an annuity under a separation deed following the compromise of an action, the amount being fixed by a judge, is provable in the husband's bankruptcy (b). The adultery of the wife (c), or even a divorce for adultery (d), does not release the husband from his covenant to pay, and it is therefore that the "dum casta" clause is inserted in separation deeds, whereby the husband's liability is determined by the (x) Fearon v. Aylesford (1884), 14 Q. B. D. 792, C. A. (y) Cahill v. Cahill (1883), 8 App. Cas. 420, per Lord Selborne, L. C. (2) Fearon v. Aylesford, Earl of (1884), 14 Q. B. D. 792, C. A. (a) Hobbs v. Hull (1788), Cox, 445; Nixon v. Hamilton (1838), 1 Ir. Eq. Rep. 46; 2 Dr. & Wal. 364; Clough v. Lambert (1839), 10 Sim. 174; Walrond v. Walrond (1858), John. 18; Cowx v. Foster (1860), 1 J. & H. 30; and see Eversley Dom. Rel., vol. i., p. 479; (b) Ex parte Neal, In re Batey (1880), 14 Ch. D. 579, aliter formerly, see Parker v. Ince (1859), 4 H. & N. 53. (c) Baynon v. Batley (1832), Bing. 256; Fearon v. Aylesford (1884), 14 Q. B. D. 792, C. A. (d) Charlesworth v. Holt (1873), L. R., 9 Ex. 38; Grant v. Budd (1874), 30 L. T. 319. |