husband for his interest, and the decree will be in these terms, superseding execution against her stante matrimonio. Accordingly, if the marriage be dissolved by the death of the wife, the husband's liability at once ceases, even though decree has already been obtained against him, except in quantum lucratus. Nothing short of a completed diligence—e.g., an arrestment followed by furthcoming, or a decree of adjudication-will prevent the husband's liability from ceasing at the death of the wife. He was not lucratus if he merely received a moderate tocher. By the Act his liability, as above stated, subsists to the amount of any property acquired through the marriage. Conversely, if the husband dies, the wife becomes liable for her ante-nuptial debts. 4 Even for a Wife's Heritable Debts contracted before marriage the Husband is liable in quantum lucratus. *—And on the same principle he is liable for all her debts where he has by marriage-contract or otherwise acquired her whole estate, heritable and moveable. In this case also he will continue liable for her heritable debts after the dissolution of the marriage—i.e., of course in quantum lucratus. If a reference to oath be necessary to prove the constitution and resting-owing of the debt, it must be the oath of the husband and not the wife." Deeds granted by a Woman after Proclamation of Banns. -Gratuitous alienations by a woman whose banns have been proclaimed may be reduced by the husband, if the marriage takes place, on the ground that his curatorial power draws back on the marriage to the date of the banns. It was held "as deeds of a wife clad with a husband, without his consent, are null after the solemnisation of the marriage, because she is then in potestate viri, et sub ejus tutela, so that she is truly wife after the contract of marriage becoming public by pro 1 Fr. i. 593; Ersk. i. 6, 16 and 17. 2 Wilkie v. Stewart, 1678, M. 5868; Bryson v. Menzies, 1698, M. 5869. 3 Ersk. i. 6, 17; Burnet v. Lepers, 1665, M. 5871; see supra, p. 192. + Leslie v. Wallace, 1708, M. 5853. 5 Monro v. Macleod, 1809, Hume, 215; and see Mitchell v. Moultrys, 1882, 10 R. 378. 6 Ersk. i. 6, 22; Bell's Prin. ii. 1551; Fr. i. 681. FRAUD ON MARITAL RIGHTS. 195 clamation." "1 The right of challenge extends to dispositions by the bride of heritage. Logically, it should cover onerous deeds also, but it does not appear that any alienation for value has been set aside on this head, and Bell limits this ground of reduction to gratuitous grants. It is thought that the Married Women's Property Act has not affected this question so far as regards alienations of capital. Fraud on Marital Rights.-Apart from the doctrine of the effect of banns, gratuitous alienations by a woman during betrothment are reducible if they were concealed from her intended husband in such circumstances as to indicate fraud.4 Bell says, "if there have been no banns proclaimed, or not regularly, the validity of such a conveyance will depend on grounds of reduction or preference at common law." There appears to be only a single decision in Scotland, and it is to be noticed that Stair refers this case to a different principle. In England the doctrine is well recognised." Fraud was found in one case though the husband was ignorant that his intended wife was owner of the property. It is thought that there will be no further room for this rule since the Married Women's Property Act, and in Scotland the husband's rights in his wife's estate are so limited by the Act that it would be difficult to prove such a pre-nuptial alienation to be fraudulent. 10 1 Bute v. B., 1666, M. 6031. 2 Fletcher, 1611, M. 6029. 3 Prin. ii. 1551; Com. (Shaw's Ed.), i. 673; and see Gilchrist v. Pringle, 1682, M. 6032; and argument in Blair v. Malloch, 1776, M. 5846, at p. 5848. 4 Auchinleck v. Williamson, 1667, M. 6033. 5 Prin. ii. 1551. 6 i. 4, 9. 7 Strathmore V. Bowes, 1789, White and Tudor's L.C., i. 471. 8 Goddard v. Snow, 1826, 1 Russ. 485; but see St. George v. Wake, 1833, 1 M. and K. 610. 9 See Crawley, H. and W., p. 57. 10 Bell's Prin. 1.c. (editor's note). CHAPTER XVIII. THE EFFECTS OF DIVORCE ON PROPERTY. ON divorce the innocent spouse is at once entitled to claim legal rights, as if the guilty spouse had died at the date of the decree. And conventional provisions payable to the surviving spouse by the guilty one, or any one on his or her behalf, become at once exigible. Thus, where the husband's father had contracted to pay an annuity to his son's wife in the event of her survivance, it was held on the son's divorce for adultery that she was entitled to demand immediate payment.1 But this does not apply to testamentary provisions made for the innocent spouse by his or her own relations in the event of survivance, unless this appears to have been intended. E.g., A wife was entitled under her father's will to certain subjects in the event of her surviving her husband. She divorced her husband for desertion, and called on her father's trustees to convey the subjects to her at once. It was held they had no power to do so, as the time contemplated was the natural death of the husband during the wife's lifetime.3 Legal Rights.-The wife, if innocent, is entitled to claim her terce and jus relictæ. The husband, if innocent, is entitled to claim his courtesy if the other conditions attaching to that right have been fulfilled.5 And it would appear that he is now entitled to jus relicti. There is no difference in result whether the ground of 1 Johnstone-Beattie v. Johnstone, 1867, 5 M. 340. 2 Scott and others, 18th July, 1893, not yet reported. 3 Mason v. Beattie's Trs., 1878, 6 R. 37. 4 Ersk. i. 6, 46 and 48; Stair, i. 4, 20; Fr. ii. 1217; Bell's Com., 5th Ed. 634. 5 Fr. ii. 1218; Bell's Com. ibid. 6 Married Women's Property Act, 1881 [44 & 45 Vict. c. 21], § 6. divorce be adultery or desertion,' with one doubtful excep tion. Where the Ground of Divorce is the Husband's Adultery, is he bound to restore the Tocher ?-The statute, 1573, c. 55, provides that in divorce for desertion "the party offending shall lose the tocher and the donationes propter nuptias." The patrimonial effects of divorce for adultery do not rest upon. statute, and although it is now settled that as regards legal and conventional rights they are the same as where the ground is desertion, this has not been decided with regard to restitution of the tocher. There is an old authority to the contrary which is approved of by Lord Fraser.2 But it may well be doubted whether, if the question arose again, this authority would be followed.3 Guilty Spouse Bankrupt.-Where the guilty spouse is bankrupt at the date of decree, the innocent spouse may rank for conventional provisions if they are such as to give a jus crediti. There can be of course no ranking with onerous creditors for legal rights or for provisions which only amount to a spes successionis. Divorce has no retroactive Effect. If the right has vested in the guilty spouse prior to decree, the divorce will not bar him or her from claiming it. Thus a husband who had been divorced was found entitled to claim a sum which had vested in the wife stante matrimonio, and fallen under the jus mariti, although it had not been paid at the date of divorce.5 Donations.-Donations made by the innocent spouse are revoked ipso facto by decree of divorce, and those made by the guilty become irrevocable. It was held in an old case that when adultery was followed by divorce, a revocation by the 1 Thom v. T., 1852, 14 D. 861; M'Alister v. M'A., 1854, 26 S.J. 597; Johnstone-Beattie, 1868, 6 M. 333; Harvey v. Farquhar, 1870, 8 M. 971, aff. 1872, 10 M. H.L. 26. 2 Justice v. Murray, 1761, M. 334; Fr. ii. 1223. 3 Ersk. i. 6, 48, and the Notes; Bell's Prin., § 1622, and Notes ; 5 4 Bell, supra; Fr. ii. 1225. Ferguson v. Thomson, 1877, 4 R. 393. 6 Ersk. i. 6, 31; Fr. ii. 1224. guilty spouse after the adultery, but before the decree, was ineffectual,1 Mutual Divorces.-Where there are counter-actions, and both spouses are divorced, neither has any claim upon the property of the other. The effect is the same as if both had died at the date of decree.2 Heritage of Divorced Wife.-A wife divorced for adultery who marries or openly cohabits with the paramour, cannot alienate her heritage to any person in prejudice of the issue of the dissolved marriage, or failing them, of her lawful heirs.3 Effects in England.-In England a decree of divorce does not in itself operate any effect on the property of the spouses. But by the Divorce Act the Court has power to vary settlements, so as to divide the joint income of the spouses as shall seem just. And where a Scotswoman married an Englishman under an ante-nuptial contract in Scotch form, and was divorced for adultery, it was held by Sir James Hannen, that he had power to vary the Scotch settlement.5 A wife divorced for adultery will be awarded permanent alimony if she is indigent. 4 22 & 23 Vict. c. 61, § 5. 1 Murray v. Livingston, 1576, M. 328. 2 Fraser v. Walker, 1872, 10 M. 837. 3 Act, 1592, c. 119; Fr. ii. 1224; Ersk. ii. 3, 16. 5 186. Nunneley v. N., 1890, 15 P.D. "See Chapter on "English Law," infra. |