Acknowledg- Stat. 21 & 22 Provisions respecting property of wife to extend to property vested in her as executrix, &c. Order for protection of earnings, &c., of wife to be And the Divorce Act, 1858, enacts that: Sect. 7. "The provision contained in this Act, and in the said Act 20 & 21 Vict. c. 85, respecting the property of a wife who has obtained a decree for judicial separation or an order for protection, shall be deemed to extend to property to which such wife has become or shall become entitled as executrix, administratrix, or trustee since the sentence of separation or the commencement of the desertion (as the case may be); and the death of the testator or intestate shall be deemed to be the time when such wife became entitled as executrix or administratrix.” Sect. 8. "In every case in which a wife shall under this Act, or under the said Act 20 & 21 Vict. c. 85, have obtained an order to protect her earnings or property, or a decree for judicial deemed valid. separation, such order or decree shall, until reversed or discharged, so far as necessary for the protection of any person or corporation who shall deal with the wife, be deemed valid and effectual; and no discharge, variation, or reversal of such order or decree shall prejudice or affect any rights or remedies which any person would have had, in case the same had not been so reversed, varied, or discharged in respect of any debts, contracts, or acts of the wife incurred, and entered into, or done between the times of the making such order or decree, and of the discharge, variation, or reversal thereof; and property of or to which the wife is possessed or entitled for an estate in remainder or reversion at the date of the desertion or decree (as the case may be) shall be deemed to be included in the protection given by the order or decree." Order to state the desertion commenced. Sect. 9. Every order which shall be obtained by a wife time at which under the said Act 20 & 21 Vict. c. 85, or under this Act, for the protection of her earnings or property, shall state the time at which the desertion in consequence whereof the order is made commenced; and the order shall, as regards all persons dealing with such wife in reliance thereon, be conclusive as to the time when such desertion commenced." Indemnity to corporations, &c., making payments under orders afterwards reversed. Sect. 10. "All persons and corporations who shall, in reliance on any such order or decree as aforesaid, make any payment to or permit any transfer or act to be made or done by the wife who has obtained the same, shall, notwithstanding such order or decree may then have been discharged, reversed, or varied, or the separation of the wife from her husband may have ceased, or at some time since the making of the order or decree been discontinued, be protected and indemnified in the same way in all respects as if, at the time of such payment, transfer, or other act, such order or decree were valid and still subsisting without variation in full force and effect, and the separation of the wife from her husband had not ceased or been discontinued, unless at the time of such payment, transfer, or other act such persons or corporations had notice of the discharge, reversal, or variation of such order or decree, or of the cessation or discontinuance of such separation." By the Matrimonial Causes Act, 1878, s. 4, it is Stat. 41 & 42 provided that Vict. c. 19. assault. "If a husband shall be convicted summarily or otherwise of Aggravated an aggravated assault within the meaning of 24 & 25 Vict. c. 100, s. 43, upon his wife, the court or magistrate before whom he shall be so convicted may, if satisfied that the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with her husband; and such order shall have the force and effect in all respects of a decree of judicial separation on the ground of cruelty." Not many questions seem to arise on these Acts, which in future will cease to be necessary for the purpose of protecting the property of the wife. The first Act was held to apply to trusts even before the second was passed: Bathe v. Bank of England, 4 K. & J. 564. The general effect of the Acts is as follows:— (1) A woman divorced from her husband holds her property from the date of the decree nisi: Prole v. Soady, L. R., 3 Ch. 220; as if he had died at the date of decree: Wells v. Malbon, 31 Beav. 48. (2) A woman who is judicially separated from her husband, or who has obtained a protection order, holds her property from the date of sentence or the desertion, as a feme sole, and persons dealing with her are protected from any reversal of the sentence or order. As to the wife's choses in action it may be said generally that, if the husband has not, for whatever reason, reduced them into possession before the date of decree, sentence, or desertion, as the case may be, they remain the property of the wife, and she can sue for them in her own name under the Acts: Coward and Adams' Purchase (Jessel, M. R.), 20 Eq. 179; Nicholson v. Drury, &c., 7 Ch. D. 48. The best test of reduction into possession is thus given by Fry, J., in that case: "Nothing has ever been held to amount to reduction into possession of ment by Married Women. Acknowledg- a wife's chose in action which does not give the husband for some moment of time absolute dominion over the property without any concurrence of the wife: " p. 55. So her reversions at the date of decree, sentence, or desertion falling in afterwards are her separate property: Re Insole, 1 Eq. 470. And the defect of a disposition between the date of desertion and obtaining the order or decree nisi and the decree absolute is cured by the subsequent order or decree: In the Goods of Ann Elliott, L. R., 2 P. & M. 274. The decree, sentence, or order, discharges any restraint on anticipation. Cooke v. Fuller, 26 Beav. 99; Munt v. Glynes, 20 W. R. 823; 41 L. J., Ch. 639. Stat. 33 & 34 Personal property not exceeding 2001. coming to a married woman to be her own (g). Freehold pro to a married (b) The Married Women's Property Act, 1870, enacts that Sect. 7. "Where any woman married after the passing of this Act shall during her marriage become entitled to any personal property as next of kin or one of the next of kin of an intestate, or to any sum of money not exceeding two hundred pounds under any deed or will, such property shall, subject and without prejudice to the trusts of any settlement affecting the same, belong to the woman for her separate use, and her receipts alone shall be a good discharge for the same." Sect. 8. "Where any freehold, copyhold, or customaryhold perty coming property shall descend upon any woman married after the woman, rents passing of this Act as heiress or co-heiress of an intestate, the and profits rents and profits of such property shall, subject and without prejudice to the trusts of any settlement affecting the same, belong to such woman for her separate use, and her receipts alone shall be a good discharge for the same." only to be her own (g). "Entitled" in sect. 7 means entitled in possession: Lane v. Oakes, 22 W. R. 709; 30 L. T. 726; and in that case a reversionary fund which belonged to a married woman before marriage and fell into possession afterwards, was held to be her separate property. It has been held by Jessel, M. R., in King v. Voss, 13 Ch. D. 504, that any personal estate, whatever its nature or value, is within sect. 7. The same eminent judge expressed an opinion in King v. Voss, ubi supra, that the words "rents and (g) Inaccurate, see text. Acknowledg ment Women. profits" carried the fee to the married woman s separate use; but the expression is enough to exclude by Married trust property. Leaseholds are not within either section, unless they are part of an intestate's estate. It is not impossible that it might be held that real estate within the Act descending to a feme sole would be her separate property if she subsequently married: Dart, V. & P. 5th ed. p. 21. Otherwise it would follow that if a woman acquiring property under these sections became discovert and then re-married before the Act of 1882, that the separate use was gone. The Married Women's Property Act, 1882, enacts Stat. 45 & 46 as follows Vict. c. 75. Sect. 1.-"(1) A married woman shall, in accordance with the Married provisions of this Act, be capable of acquiring, holding, and dis- woman to be posing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee." "(2) A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract [the rest of the sub-section refers to suing]. "(3) Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown." "(4) Every contract entered into by a married woman, with respect to and to bind her separate property, shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire." capable of holding property and of contracting as a feme sole. married after Sect. 2. "Every woman who marries after the commence- Property of a ment (h) of this Act shall be entitled to have and to hold as her woman separate property and to dispose of in manner aforesaid all real the Act to be and personal property which shall belong to her at the time of held by her as a feme sole. marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill." (h) By sect. 25, the date of the commencement of the Act is the 1st of January, 1883. An Act commences from the first moment of the day of its commencement: Tomlinson v. Bullock, 4 Q. B. D. 230. B.-VOL. I. ૨ Acknowledg- Property acquired after the Act by a Woman married before the Act to be held by her as a feme sole. Saving of existing settlements and the power to make future settle ments. Sect. 5. "Every woman married before the commencement (h) of this Act shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue after the commencement (h) of this Act, including any wages, earnings, money, and property so gained or acquired by her as aforesaid." Sect. 19. "Nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman (i); or shall interfere with or render inoperative any restriction against anticipation at present attached or to be hereafter attached, to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors." The effect of these provisions and the Act generally is to create a new status for married women, (h) See note (h), ante, p. 225. (i) A marriage settlement made in 1862, contained an agreement to settle after-acquired property of the wife (other than interests settled and limited to her separate use). Under the will of a testator who died in 1883, she became absolutely entitled to a sum of money not limited to her separate use: it was held that the bequest to the wife came within the covenant to settle afteracquired property: Re Stonor's Trusts, 24 Ch. D. 195. And it would seem to follow from this decision that a trust for the separate use of a married woman is still as necessary as before the Act in any instrument which might by possibility come within the term "settlement." See the judgment of Pearson, J., at p. 198. In any case it is conceived that it would be rash to omit such a trust in framing a settlement by deed or will, until the necessity for inserting it is dispensed with by express judicial decision. Conveyancers cannot be too much on their guard against forming an exaggerated estimate as to charges introduced by recent legislation as regards drafting. The present Editor recently had before him a reconveyance of a mortgage in fee, in which the draftsman had evidently assumed that the Conveyancing and Law of Property Act, 1881, repealed the Statute of Uses. |