Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

I. Married woman may effect policy of assurance for her separate use.—A married woman may effect a policy of assurance, on her own life or on the life of her husband, for her separate use; and the same and all benefit thereof, if expressed to be for her separate use, shall, immediately on being so effected, vest in her, and shall be payable to her, and her heirs, executors, and assignees, excluding the jus mariti and right of administration of her husband, and shall be assignable by her either inter vivos or mortis causa without consent of her husband; and the contract in such policy shall be as valid and effectual as if made with an unmarried woman.

II. Policy of assurance may be effected in trust for wife and children.-A policy of assurance effected by any married man on his own life, and expressed upon the face of it to be for the benefit of his wife, or of his children, or of his wife and children, shall, together with all benefit thereof, be deemed a trust for the benefit of his wife for her separate use, or for the benefit of his children, or for the benefit of his wife and children; and such policy, immediately on its being so effected, shall vest in him and his legal representatives in trust for the purpose or purposes so expressed, or in any trustee nominated in the policy, or appointed by separate writing duly intimated to the assurance office, but in trust always as aforesaid, and shall not otherwise be subject to his control, or form part of his estate, or be liable to the diligence of his creditors, or be revocable as a donation, or reducible on any ground of excess or insolvency; and the receipt of such trustee for the sums secured by the policy, or for the value thereof, in whole or in part, shall be a sufficient and effectual discharge to the assurance office: Provided always, that if it shall be proved that the policy was effected and premiums thereon paid with intent to defraud creditors, or if the person upon whose life the policy is effected shall be made bankrupt within two years from the date of such policy, it shall be competent to the creditors to claim repayment of the premiums so paid from the trustee of the policy out of the proceeds thereof. (d)

(d) This section is substantially the same as section 10 of the English Married Women's Property Act, 1870, which Act being repealed by section 22 of 45 & 46 Vict. c. 75, the provision was re-enacted in another form by section 11 of the latter Act. The latter Act is printed infra.

The law as to the rights of spouses under policies of assurance, prior to the passing of this Act, was fully discussed in the cases of Smith v. Kerr, 7 Macph. 863; Muirhead, 6 Macph. 95; Wight v. Brown, 11 D. 459; Thomson's Trs. v. Thomson, 9th July, 1879, 7 R. 1228.

III. Application and short title of Act.-This Act shall apply only to Scotland, and may be cited as the Married Women's Policies of Assurance (Scotland) Act, 1880.

XXV.—ACT for the Amendment of the Law regarding Property of Married Women in Scotland. (a)-[44 & 45 Vict. c. 21, 18th July, 1881.]

WHEREAS an Act was passed in the fortieth year of the reign of Her present Majesty, entitled the Married Women's Property (Scotland)

66

(a) This is a singularly involved Act. It has been aptly characterised by an eminent judge as 'a startling and anomalous piece of legislation.”—Poë v. Paterson, 3rd Dec. 1882, 20 S. L. R. 252). Its object, as stated in the preamble, is "to protect to the further extent" therein specified, "the property of married women in Scotland," saving always marriage-contracts, whether executed before or during marriage, as also the law relating to such contracts, and to donations between married persons, to a wife's non-liability to personal diligence, and the rights of married women under the Married Women's Property Act, 1877. It does not repeal the Conjugal Rights Acts, or the Married Women's Policies of Assurance Act, previously passed, so that these Acts (printed above) are to be read along with this Act; but, in the case of a conflict (see 13 Vict. c. 21), the later Act must prevail. It is this fact, coupled with the general and indefinite, if not somewhat ambiguous terms of the present Act, that creates the difficulty of a ready and clear understanding of the present law affecting the property of married women.

The provisions of the present Act, which came into operation on 18th July, 1881, may be briefly summed thus :

§§ 1 and 2 have reference to marriages contracted after 18th July, 1881; where the husband at the time of the marriage had his domicile in Scotland.

§§ 3 and 4 have reference to marriages contracted before that date, irrespective of the husband's domicile at the time of the marriage.

§§ 5, 6, 7, and 8 are applicable to all marriages, irrespective of the time of contraction.

The effect of the Act may be broadly stated as follows:

§ 1 practically abolishes the husband's jus mariti, and secures a married woman in the possession of her separate personal estate, but restrains her from assigning the prospective income thereof, or disposing of such estate, other than accruing income, without the husband's consent.

§ 2 abolishes the husband's jus mariti and right of administration as regards the rents and produce of heritable property in Scotland belonging to the wife. §3 excludes the operation of the Act where the husband by irrevocable deed has made a reasonable provision for his wife in case of her surviving him; and in other cases, excludes the husband's jus mariti and right of administration as to all property coming to the wife after 18th July, 1881.

§ 4 enables persons married before 18th July, 1881, to come under its provisions by mutual deed to be registered and publicly advertised.

§ 5 enables a wife, deserted by her husband or living apart from him with his consent, to take legal measures towards executing deeds without her husband's consent.

Act [40 & 41 Vict. c. 29](6), and it is just and expedient to protect, to the further extent hereinafter provided for, the property of married women in Scotland(c):

Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

:

I. (1.) Wife married after date of Act to have separate estate in moveables. Where a marriage is contracted after the passing of this Act(d), and the husband shall, at the time of the marriage, have his domicile in Scotland(e), the whole moveable or personal estate(ƒ) of the wife, whether acquired before or during the marriage, shall, by

$$ 6 and 7 give the husband and children of a woman dying domiciled in Scotland, indefeasible rights in her personal succession, similar to the rights of jus relicta and legitim, which a widow and children have in the personal estate of a husband and father at his death.

§ 8 exempts antenuptial, postnuptial, and other contracts from the operation of the Act.

§§ 5, 6, 7, and 8 are substantive and independent enactments, not intended to be restricted in their application, but to extend to all marriages whether contracted before or after the Act.

(b) This Act printed above.

(c) This preamble does not cover the whole provisions of the Act. (d) 18th July, 1881.

(e) The law of domicile is explained in §§ 82, 219 supra. This section does not come into operation except where the husband is domiciled in Scotland at the time of the marriage. Consequently it does not apply to all marriages that may be contracted in Scotland after the date of the Act. For example, a foreigner, or a man not domiciled in Scotland, may contract marriage in Scotland with a domiciled Scotchwoman without being affected by this section, nor would it make any difference if immediately after the marriage the husband took up his residence in Scotland animo manendi, and lived in Scotland every day of his married life, or indeed lived in Scotland every day of his existence, except during the time necessary to acquire a domicile elsewhere previous to the date of his marriage. In either case, the husband would not, under Section 1, lose his jus mariti (which, as already stated, comes into existence on the solemnisation of the marriage, § 90 supra) to any extent, but (in the words of the Act) it would extend over "the whole moveable or personal estate of the wife, whether acquired before or during the marriage," in so far as not excluded otherwise than by this section. In the case, therefore, of a husband not domiciled in Scotland at the time of his marriage, this section creates no separate moveable estate which would be subject to division on the wife's death under Sections 6 and 7 of the Act, except to the extent provided by Section 2 of the Act as regards "the rents and produce of heritable property in Scotland belonging to the wife," which rents are declared "to be no longer subject to the jus mariti and right of administration of the husband." This latter section does not state that it is to take effect only where the domicile of the husband at the time of the marriage is in Scotland, or that the marriage must be contracted in Scotland at all.

(f) As to what is comprehended under "moveable or personal estate" see § 83 supra.

operation of law, be vested(g) in the wife as her separate estate(h), and shall not be subject to the jus mariti.(i)

(2.) Income. Any income of such estate shall be payable to the wife on her individual receipt or to her order, and to this extent the husband's right of administration(k) shall be excluded; but the wife shall not be entitled to assign the prospective income thereof(l), or, unless with the husband's consent, to dispose of such estate. (m)

(g) As to the operation of the law of vesting, see § 80 supra.

(h) "Separate estate as used here does not mean that the wife's personal property shall be at her own absolute disposal. As will be afterwards seen, it practically means that the separate estate shall not fall into the hands of the husband or his creditors. Nor does the term include the whole of the wife's moveable or personal estate. Section 8 of the Act expressly exempts from its operation the rights of married women under The Married Women's Property Act, 1877, which excludes the husband's right of administration, as well as his jus mariti, from the wages and earnings of married women gained in any trade, employment, or business, and all investments thereof. Such wages and earnings, therefore, and their accumulations, do not fall under the provisions of this Act, but under the provisions of The Married Women's Property Act, 1877. Moreover, the provisions of the Conjugal Rights Act and the Married Women Policies of Insurance Act (printed supra) remain unaffected by this Act. Consequently, a married woman may possess other "separate estate" of a personal nature, with which she may deal as if she were unmarried. She is, for instance, entitled to claim out of property she may acquire by donation, bequest, succession, or any other means than by her own industry (means acquired by her own industry being, as already noticed, provided for by the Married Women's Property Act, 1877), a "reasonable provision" for herself, to be held by her exclusive not only of the jus mariti but of the right of administration of her husband. She may also effect an insurance on the life of herself or of her husband for "her separate use," to be held by her in the same uncontrolled manner, and to be assignable by her either inter vivos or mortis causa without the consent of her husband. She may further, if deserted by her husband, or judicially separated from him, secure by legal measures any property she may, after such separation or desertion, acquire by her own industry or succession, to be held by her as if unmarried. These results may also be obtained irrespective of the husband's domicile at the time of the marriage. This section has also to be read along with Subsection 5 of Section 1 and Section 8 of the Act, which exclude from the operation of the Act antenuptial, postnuptial, and other contracts, as well as certain rights of married women; and under all or any of these, therefore, a married woman may possess other "separate estates" more or less under her personal control.

(i) The jus mariti and how it operates are explained in § 90 supra.

(k) The right of administration is explained in § 90 supra. See also Bryce's Trs. 2nd Feb. 1878, 5 R. 722, where the distinction between the jus mariti and right of administration is explained.

(1) The wife is excluded from assigning the prospective income from the personal property specified in Subsection 1 of Section 1; but, as stated in note (h), the wife may be possessed of other property which is not touched by this section.

(m) This provision renders the wife incapable of disposing of the personal property specified in the preceding subsection. As regards such property the husband's jus mariti is entirely excluded, but his right of administration is excluded only as regards income, and even as regards that, the exclusion is qualified to the extent only of enabling the wife to uplift the income on her own receipt; she is expressly debarred from assigning it prospectively. She is further restrained from assigning or disposing of any part of the capital of her separate estate without her husband's consent whilst

(3.) Liability to arrestment.-Except as hereinafter provided (n), the wife's moveable estate shall not be subject to arrestment, or other diligence of the law, for the husband's debts, provided that the said estate (except such corporeal moveables(o) as are usually possessed without a written or documentary title) is invested, placed, or secured in the name of the wife herself, or in such terms as shall clearly distinguish the same from the estate of the husband.

(4.) Bankruptcy.-Any money, or other estate of the wife, lent or entrusted to the husband(p), or immixed with his funds, shall be treated as assets of the husband's estate in bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the value of such money or other estate after but not before the claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied.

(5.) Contracts of marriage.(q)-Nothing herein contained shall exclude or abridge the power of settlement by antenuptial contract of marriage.

II. Rents of heritable property to be separate estate in wife.—Where a marriage is contracted after the passing of this Act, the rents and

living with him. If she is deserted by him, or living apart from him with his consent (§ 5), she may obtain the authority of the Court to dispense with his consent to any deed relating to her estate, but not otherwise. Practically, therefore, the provisions in this section place the capital of a wife's moveable estate in a position somewhat similar to what the older law placed her paraphernalia-that is, the rights of the husband and his creditors being absolutely excluded; but, on the other hand, the wife had not the power of either disposing of, or pledging the paraphernalia without the husband's consent. As a necessary result of this it would seem that the rents and produce of a wife's heritable estate, as well as the annual income of her moveable estate, as the same become due, may be lawfully attached for her debts and deeds, but that no part of the capital or prospective income of her moveable estate may be so attached, even for the wife's own debts or deeds, any more than her paraphernalia could have been attached for her debts or deeds, or pledged by her without her husband's consent. As a husband upon the death of his wife has now a legal right to a share of her separate moveable estate, equal to her right of jus relicta in his estate in the event of his death, it is obvious that the husband's consent may be withheld to his own ultimate advantage. Moreover, as the wages and earnings of a married woman, and all investments and accumulations thereof fall, as already stated, under The Married Women's Property Act, 1877, the provisions of that Act, and not the provisions of the Act of 1881, apply thereto. It is of course always open (§ 8) to husband and wife to contract themselves out of the present Act.

(n) Subsection 4.

(0) See § 83 supra, as to what is comprehended under term "corporeal moveables." (p) The 3rd section of The English Married Women's Property Act, 1882 (the Act is printed infra) is substantially the same as this section. The object is to prevent the husband in the case of his bankruptcy maintaining that the capital employed in his business, though really his own, belonged to his wife, and that she is either a secured or unsecured creditor for the amount.

(q) This clause seems unnecessary and meaningless, as Section 8 covers the whole of the Act as regards contracts made between persons either before or during marriage,