CHAPTER XXXIII. THE REGISTRATION OF MARRIAGES. REGULAR marriages must be registered under statutory penalties in case of failure, and irregular marriages may be registered on compliance with certain conditions. Certified extracts of entries in the register books are admissible evidence of the facts they record, but are not probatio probata of them, and may be challenged on the ground that the marriage was invalid from force, pupillarity, want of capacity, nearness of kin, or otherwise, or that the register itself is erroneous or has been vitiated. The essential validity of the marriage depends on the proof of interchange of matrimonial consent, and in no degree rests on registration or the want of it. Registration is merely an adminicle of evidence which may be more or less important. The provisions as to registration of marriages are contained in certain sections of four Acts.3 Regular Marriages. When the marriage has been performed by a minister, or a person appointed to celebrate marriage by the Jews or Quakers, after publication of banns, or notice under the Marriage Notice Act, Schedule C., appended to the Act 17 & 18 Vict. c. 80, as amended by the Registrar-General,5 must be transmitted within three days after the marriage to the registrar of the parish in which the marriage was solemnised. Failure to comply renders the husband, and failing him the wife, liable in a penalty not exceeding £10.6 Provision is made, when the parties desire it, for the attendance of the registrar at the ceremony.7 1 17 & 18 Vict. c. 80, § 58. 2 Dickson on Evidence, ii. 1204. 3 17 & 18 Vict. c. 80; 18 Vict. c. 29; 23 & 24 Vict. c. 85; 42 Vict. c. 8. 4 41 & 42 Vict. c. 43. 6 § 46. 7 § 47. Irregular Marriages.-Parties appearing before a justice of the peace or magistrate may, on a somewhat fictitious complaint at the instance of the procurator-fiscal, have themselves convicted on their own confession of having contracted an irregular marriage. But proof, other than the acknowledgment of parties, must now be adduced that one of them had at the date thereof his usual residence in Scotland or had lived there during the twenty-one days preceding the marriage. The registrar is forbidden to record the marriage unless the extract of conviction bears that such proof was adduced.1 A simpler mode is provided by the same Act. The parties, within three months after they have contracted an irregular marriage, may present a joint application to the sheriff or sheriff-substitute of the county in Scotland in which it was contracted. On proof (1) of the marriage, and (2) that one of them had his or her usual residence in Scotland, or had lived there for twenty-one days preceding it, the sheriff will grant a warrant to the registrar to record the marriage. The registrar's fee is in this case five shillings.3 Where Marriage is established by Action of Declarator. The clerk of Court is bound under penalty of forty shillings to transmit a notice of the decree to the registrar of the parish of the domicile or usual residence of the parties. If they belong to different parishes it should be transmitted to the registrars of both.4 Foreign Marriages.—If the marriage of a Scottish subject, which has been celebrated abroad, be intimated within twelve months, to the registrar-general, and certified by the British Consul of the country or district within which it has taken place, such marriage will be entered in a book called "The Foreign Register. Provision has been made by a more recent Act for the registration of marriages celebrated abroad by officers and soldiers of Her Majesty's land forces or members of their families who are with the regiment." 1 19 & 20 Vict. c. 96, § 3. The Registrar is entitled to a fee of twenty shillings, 17 & 18 Vict. c. 80, § 48. 2 § 2. 3 For the usual form of proceedings, see Appendix. 4 17 & 18 Vict. c. 80, § 49. CHAPTER XXXIV. THE MARRIED WOMEN'S POLICIES OF ASSURANCE (SCOTLAND) ACT, 1880 [43 & 44 VICT. c. 26]. THIS Act, which commenced on the 26th August, 1880, provides-1. A married woman may effect a policy of assurance on her own life or on the life of her husband. In either case, if it is expressed to be for her separate use, it vests in her and is payable to her and her beirs, executors, and assignees, excluding the jus mariti and right of administration. It may be assigned by her inter vivos or mortis causa without her husband's consent.1 2. A policy of assurance taken by a married man on his own life, and expressed on the face of it to be for the benefit of his wife, or of his children, or of his wife and children, shall 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. The policy and its proceeds shall vest in him as trustee, or in any trustee whom he may nominate in the policy, or in a separate writing intimated to the Insurance Office. It is not liable to the diligence of his creditors, or revocable as a donation, or reducible on any ground of excess or insolvency. But if it be proved that the policy was effected and the premiums paid with intent to defraud creditors, or if the husband is made bankrupt within two years of the date of the 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.2 Where the policy is expressed in general terms, as for the 18 1. 2 § 2. The Act is printed in the Appendix. 3 "benefit of the wife and children of the assured," how will the proceeds be divided? This has not been decided in Scotland. In England, conflicting judgments have been given by judges of first instance construing identical words.1 Chitty, J.,2 and Malins, V.C., held at first that the wife took the proceeds for life, and the children the fee. But Malins, V.C., subsequently adopted another view, and decided that the proceeds should be divided as on intestacy. This is, it is submitted, supported by no good grounds. The Act, itself, provides that the policy. shall not form part of the husband's estate. Why then should the fund be divided as if it were part of his estate of which he had not disposed? In a later case,5 North, J., held that the wife and children took as joint tenants, or, as we should express it, that the fund fell to be equally divided among the survivors at the date of payment. And this appears to be the sounder view. Fraud on Creditors. It has been held in England that the husband's creditors cannot claim repayment of premiums on a policy settled by the husband on his wife and children, when it is proved that the premiums were paid by the wife out of her separate estate. Where the policy was effected by the wife, but with money belonging to the husband, and was expressed to be for the benefit of the children, it appears that the husband, on the wife's death, could claim repayment of the value of the premiums so advanced by him." The wife may assign or burden her interest.—It would appear that, where not excluded by the terms of the policy, a married woman may dispose stante matrimonio of her interest on a policy taken by her husband on his life for her benefit. In an English case an opposite conclusion was reached, but 1 The statute in England is The Married Women's Property Act, 1882, § 11, which re-enacts, with some additions, § 10 of the Act of 1870, upon which the Act for Scotland was expressly modelled. 2 Adam's Policy Trusts, 23 Ch. D. 525. 3 Mellor's Policy Trusts, 6 Ch. D. 127. 4 Same case, 7 Ch. D. 200. 511. Holt v. Everall, 1876 (C. A.), 2 Ch. D. 266. 7 Holt v. Everall, supra. SURRENDER. 303 the judgment is expressly founded on the terms of the policy.1 The policy may be surrendered.—A policy effected by a husband on his own life for behoof of his wife in terms of sect. 2 does not constitute a trust for the wife's protection, which cannot be revoked even at her own request, on the principle of Torry Anderson's case. The trustee may surrender it at any time for its surrender value. And it does not appear that he needs the wife's concurrence. Probably, even where the husband is himself the trustee he may surrender the policy at his own hand, and if the Insurance Company had no notice of any contemplated breach of trust, they would not be entitled to withhold payment.2 Foreign Husband. A husband domiciled abroad may effect a policy under the Act.3 1 King v. Lucas, 1883 (C. A.), 23 Ch. D. 712. 2 Schumann v. Scottish Widows' Fund, 1886, 13 R. 678. |