CHAPTER XIII. JUS MARITI. By the common law of Scotland the whole moveable estate of the wife passes at marriage by an implied universal assignation to the husband. His right to her personal estate is called his jus mariti. It extends not only to every moveable right vested in the wife at the date of the marriage, but also to all those to which she acquires right stante matrimonio. Ill. A wife is entitled to a share of legitim which has vested, but is still in the hands of her father's trustees. She obtains a divorce on the ground of the husband's adultery. Held that the divorced husband can claim the legitim, as having fallen within the jus mariti.1 Wife's Equity to a Settlement. In one case before the Married Women's Property Act, an attempt had been made to soften the rigour of the common law by borrowing a rule of English equity. It was provided that, where a married woman succeeded to property or acquired right to it by donation or bequest, or any other means than by her own industry, she might claim that it should not fall under the jus mariti, except on condition that the husband should make a reasonable2 provision therefrom for her maintenance. But the claim needed to be made before the husband or any one in his right had obtained complete and lawful possession of the property.3 It seems unlikely that further questions can arise under this provision. 1 Ferguson v. Jack's Exrs., 1877, 4 R. 393. 2 Conjugal Rights Act, 1861, § 16. As to "reasonable," see Somner v. S.'s Trs., 1871, 9 M. 594; Taylor v. T., 1871, 10 M. 23; Kinnear v. Ferguson, 1871, 10 M. 54. 3 See Clark v. C., 1881, 8 R. 723; Reid v. M'Walter, 1878, 5 R. 630. WHEN JUS MARITI REMAINS. 145 In what Cases does the jus mariti still subsist ?—The extent of the jus mariti has been greatly narrowed by statute. A wife's earnings after marriage were excluded from it by the Act of 1877. At common law her paraphernalia never fell under it. But it still applies, apart from contract, to the following cases : 1. Where the marriage was contracted and the wife acquired right to moveable estate prior to the commencement of the Married Women's Property Act, 1881,2-viz., 18th July, 1881. 2. Where the wife possessed heritage at the marriage, which occurred prior to the Act, the income accruing thereafter falls under the jus mariti.3 3. Where the marriage is prior to the Act, but the husband had before the passing thereof made a reasonable provision for his widow by an irrevocable deed, moveable property, or the income of heritage, to which the wife acquires right after 18th July, 1881, will still fall under the jus mariti.* 4. When the husband's domicile is in Scotland at the date of vesting, but he was not domiciled here at the marriage, the jus mariti subsists in pleno vigore (§ 1, sub-sec. 1). When is jus mariti excluded?-1. When it has been renounced by the husband by ante-nuptial marriage-contract, or by post-nuptial contract when the renunciation is irrevocable as a reasonable provision, and the husband was solvent.5 And except in a question with a creditor of the husband at the date of the deed, the wife's whole estate may be now excluded in this way from jus mariti after the marriage (see 8, infra). 2. When the property was conveyed to the wife on the condition that the jus mariti should be excluded. 3. When the marriage was on or after 18th July, 1881, the jus mariti is excluded from all moveables and rents of heritage belonging to the wife at marriage or acquired by her afterwards. 1 40 & 41 Vict. c. 29, § 3. 2 44 & 45 Vict. c. 21. 3 Horsbrugh v. Scott, 1889, 16 R. 507. 4 Section 3, sub-sec. 1. L 4. When the marriage was before the Act, it is excluded from moveables or rents of heritage acquired by her after the Act except where the husband has made a reasonable provision. in the terms above-mentioned. 5. When the wife has obtained a judicial separation it is excluded from all property acquired by her thereafter.1 6. When the wife has obtained a Protection Order it is excluded from property acquired by her by her own industry or by succession after her husband's desertion.2 7. "The jus mariti and right of administration of the husband shall be excluded from the wages and earnings of any married woman, acquired or gained by her after the commencement of this Act [1st January, 1878], in any employment, occupation, or trade in which she is engaged, or in any business which she carries on under her own name, and shall also be excluded from any money or property acquired by her after the commencement of this Act, through the exercise of any literary, artistic, or scientific skill, and such wages, earnings, money, or property, and all investments thereof, shall be deemed to be settled to her sole and separate use, and her receipts shall be a good discharge for such wages, earnings, money, or property, and investments thereof." 3 8. Jus mariti is also excluded when the marriage was prior to 18th July, 1881, but the spouses have declared by deed that the wife's estate shall be regulated by the Act, and have complied with the directions therein set forth.* How jus mariti is renounced. The famous sublety is long exploded that a husband cannot renounce his jus mariti “because the very right of the reservation to that effect becomes the husband's jure mariti, and makes it elusory and ineffectual, as always running back upon the husband himself; as water thrown upon a higher ground doth ever return." 5 And the doctrine of Bell, that a renunciation must be of a particular subject, is not sound. It has been held, on the contrary, that it is competent by ante-nuptial contract for the husband to 1 Conjugal Rights Amendment Act, 1861 (24 & 25 Vict. c. 86), § 6. c. 29, § 3). 4 44 & 45 Vict. c. 21, § 4. 61 Bell Com. 638. renounce his jus mariti over all his wife's estate, per aversionem, and as to acquirenda as well as acquisita.1 Jus mariti might be excluded by a wife in ante-nuptial contract, or it might be excluded as to any particular property or estate by the person giving it or bequeathing it to the wife, either before or during the marriage. For it might well happen that a person should desire to benefit a wife without feeling an equal anxiety to defray her husband's expenses or pay his creditors.2 But words excluding jus mariti might not be enough to prevent a fund being carried to trustees under a marriagecontract. A wife in an ante-nuptial contract had conveyed to the trustees property she might thereafter acquire. Her father subsequently left her a share of the residue of his estate, declaring that it should be exclusive of the jus mariti, and should not fall under the conveyance in his daughter's marriage-contract. It was held that as he had appointed no trust or machinery to prevent it so falling, the marriagecontract trustees were entitled to demand it as coming under the clause conveying acquirenda.3 And the mere exclusion of jus mariti by the person bequeathing a fund to a married woman had no further effect than to enable her, if she took appropriate steps, to retain it as her separate estate. She might allow it to come into her husband's hands the next day. Where a father declared the provisions made by him for his daughters to be alimentary, and exclusive of the jus mariti of their husbands, but provided no continuing trust, the Court directed his testamentary trustees to pay over the provisions to the daughters, taking from them receipts bearing that the money was alimentary and exclusive of jus mariti.* Exclusion need not be expressed in very apt terms if the intention can be spelt out.5-Renunciation by the husband being a donation, may be proved prout de jure. And it may be inferred from facts and circumstances, as when a 1 M'Dougall v. City of Glasgow Bank, 1879, 6 R. 1089. 2 Fr. i. 783; Ersk. i. 6, 14. 3 Douglas's Trs. v. Kay's Trs., 1879, 7 R. 295; followed in Simson's Trs. v. Brown, 1890, 17 R. 581. 4 M'Nish v. Donald's Trs., 1879, 7 R. 96. 5 Irvine v. Connon's Trs., 1883, 10 R. 731; Fr. i. 783. 6 Wright's Executors v. C. of G. Bank, 1880, 7 R. 527. husband showed plainly by a course of conduct that he did not lay claim to property to which he was entitled ex jure mariti. But clear indication of intention will be required. And where a wife was an innkeeper before marriage, and the spouses separated, the fact that the husband left her for some years in the enjoyment of the stock and furniture of the inn, which had passed to him jure mariti, was held not sufficient to instruct that he had made a donation of them by renouncing his marital right. But in a case before the statutory protection of a wife's earnings the facts were these. The husband and wife lived separate for more than twenty-five years. During the whole of this period the wife supported herself, and brought up the two children of the marriage, by her industry as a washerwoman. The husband never gave her any money. It was proved that he had occasionally borrowed small sums from her, which he had always repaid. At the wife's death she had saved a sum of £60 which the husband claimed as falling under the jus mariti. It was held that the fair inference from the facts was that the husband had tacitly renounced his jus mariti, and agreed that he would not claim his wife's earnings. And the fact that a husband kept an account under his wife's name in a private cash-book in which he credited her with the income of estate which had been hers before marriage, coupled with evidence that he had been in the habit of speaking of the balance in her favour, as her property, was held sufficiently to instruct renunciation of the jus mariti.* 3 Nature of jus mariti.-The effect of the jus mariti is to carry the estate which was the wife's to the husband. A husband, whose jus mariti and jus administrationis are not excluded by convention or statute, may deal with his wife's moveable estate and the income of her heritage precisely as if she did not exist, and the property had been originally his own.5 1 Wright's Exors. v. C. of G. Bank, 1880, 7 R. 527. 2 Henderson v. H., 1889, 17 R. 18. In this case it was a material fact that after the separation the husband refused a proposal to bring his wife's estate under the Married Women's Property Act, 1881, by executing a deed in terms of § 4. 3 Davidson v. D., 1867, 5 M. 710. 4 Smith v. S.'s Trs., 1884, 12 R. 186. As to "equity to a settlement," see supra, p. 144. |