Page:EB1911 - Volume 14.djvu/15

 husband sought the aid of that court to get possession of his wife’s choses in action, he was required to make a provision for her and her children out of the fund sought to be recovered. This is called the wife’s equity to a settlement, and is said to be based on the original maxim of Chancery jurisprudence, that “he who seeks equity must do equity.” Two other property interests of minor importance are recognised. The wife’s pin-money is a provision for the purchase of clothes and ornaments suitable to her husband’s station, but it is not an absolute gift to the separate use of the wife; and a wife surviving her husband cannot claim for more than one year’s arrears of pin-money. Paraphernalia are jewels and other ornaments given to the wife by her husband for the purpose of being worn by her, but not as her separate property. The husband may dispose of them by act inter vivos but not by will, unless the will confers other benefits on the wife, in which case she must elect between the will and the paraphernalia. She may also on the death of the husband claim paraphernalia, provided all creditors have been satisfied, her right being superior to that of any legatee.

The corresponding interest of the wife in the property of the husband is much more meagre and illusory. Besides a general right to maintenance at her husband’s expense, she has at common law a right to  (q.v.) in her husband’s lands, and to a pars rationabilis (third) of his personal estate, if he dies intestate. The former, which originally was a solid provision for widows, has by the ingenuity of conveyancers, as well as by positive enactment, been reduced to very slender dimensions. It may be destroyed by a mere declaration to that effect on the part of the husband, as well as by his conveyance of the land or by his will.

The common practice of regulating the rights of husband, wife and children by marriage settlements obviates the hardships of the common law—at least for the women of the wealthier classes. The legislature by the Married Women’s Property Acts of 1870, 1874, 1882 (which repealed and consolidated the acts of 1870 and 1874), 1893 and 1907 introduced very considerable changes. The chief provisions of the Married Women’s Property Act 1882, which enormously improved the position of women unprotected by marriage settlement, are, shortly, that a married woman is capable of acquiring, holding and disposing of by will or otherwise, any real and personal property, in the same manner as if she were a feme sole, without the intervention of any trustee. The property of a woman married after the beginning of the act, whether belonging to her at the time of marriage or acquired after marriage, is held by her as a feme sole. The same is the case with property acquired after the beginning of the act by a woman married before the act. After marriage a woman remains liable for antenuptial debts and liabilities, and as between her and her husband, in the absence of contract to the contrary, her separate property is deemed primarily liable. The husband is only liable to the extent of property acquired from or through his wife. The act also contained provisions as to stock, investment, insurance, evidence and other matters. The effect of the act was to render obsolete the law as to what created a separate use or a reduction into possession of choses in action, as to equity to a settlement, as to fraud on the husband’s marital rights, and as to the inability of one of two married persons to give a gift to the other. Also, in the case of a gift to a husband and wife in terms which would make them joint tenants if unmarried, they no longer take as one person but as two. The act contained a special saving of existing and future settlements; a settlement being still necessary where it is desired to secure only the enjoyment of the income to the wife and to provide for children. The act by itself would enable the wife, without regard to family claims, instantly to part with the whole of any property which might come to her. Restraint on anticipation was preserved by the act, subject to the liability of such property for antenuptial debts, and to the power given by the Conveyancing Act 1881 to bind a married woman’s interest notwithstanding a clause of restraint. The Married Women’s Property Act of 1893 repealed two clauses in the act of 1882, the exact bearing of

which had been a matter of controversy. It provided specifically that every contract thereinafter entered into by a married woman, otherwise than as an agent, should be deemed to be a contract entered into by her with respect to and be binding upon her separate property, whether she was or was not in fact possessed of or entitled to any separate property at the time when she entered into such contract, that it should bind all separate property which she might at any time or thereafter be possessed of or entitled to, and that it should be enforceable by process of law against all property which she might thereafter, while discovert, be possessed of or entitled to. The act of 1907 enabled a married woman, without her husband, to dispose of or join in disposing of, real or personal property held by her solely or jointly as trustee or personal representative, in like manner as if she were a feme sole. It also provided that a settlement or agreement for settlement whether before or after marriage, respecting the property of the woman, should not be valid unless executed by her if she was of full age or confirmed by her after she attained full age. The Married Women’s Property Act 1908 removed a curious anomaly by enacting that a married woman having separate property should be equally liable with single women and widows for the maintenance of parents who are in receipt of poor relief.

The British colonies generally have adopted the principles of the English acts of 1882 and 1893.

Law of Scotland.—The law of Scotland differs less from English law than the use of a very different terminology would lead us to suppose. The phrase communio bonorum has been employed to express the interest which the spouses have in the movable property of both, but its use has been severely censured as essentially inaccurate and misleading. It has been contended that there was no real community of goods, and no partnership or societas between the spouses. The wife’s movable property, with certain exceptions, and subject to special agreements, became as absolutely the property of the husband as it did in English law. The notion of a communio was, however, favoured by the peculiar rights of the wife and children on the dissolution of the marriage. Previous to the Intestate Movable Succession (Scotland) Act 1855 the law stood as follows. The fund formed by the movable property of both spouses may be dealt with by the husband as he pleases during life; it is increased by his acquisitions and diminished by his debts. The respective shares contributed by husband and wife return on the dissolution of the marriage to them or their representatives if the marriage be dissolved within a year and a day, and without a living child. Otherwise the division is into two or three shares, according as children are existing or not at the dissolution of the marriage. On the death of the husband, his children take one-third (called legitim), the widow takes one-third (jus relictae), and the remaining one-third (the dead part) goes according to his will or to his next of kin. If there be no children, the jus relictae and the dead’s part are each one-half. If the wife die before the husband, her representatives, whether children or not, are creditors for the value of her share. The statute above-mentioned, however, enacts that “where a wife shall predecease her husband, the next of kin, executors or other representatives of such wife, whether testate or intestate, shall have no right to any share of the goods in communion; nor shall any legacy or bequest or testamentary disposition thereof by such wife, affect or attach to the said goods or any portion thereof.” It also abolishes the rule by which the shares revert if the marriage does not subsist for a year and a day. Several later acts apply to Scotland some of the principles of the English Married Women’s Property Acts. These are the Married Women’s Property (Scotland) Act 1877, which protects the earnings, &c., of wives, and limits the husband’s liability for antenuptial debts of the wife, the Married Women’s Policies of Assurance (Scotland) Act 1880, which enables a woman to contract for a policy of assurance for her separate use, and the Married Women’s Property (Scotland) Act 1881, which abolished the jus mariti.

A wife’s heritable property does not pass to the husband on marriage, but he acquires a right to the administration and profits. His courtesy, as in English law, is also recognized. On the other hand, a widow has a terce or life-rent of a third part of the husband’s heritable estate, unless she has accepted a conventional provision.

Continental Europe.—Since 1882 English legislation in the matter of married women’s property has progressed from perhaps the most backward to the foremost place in Europe. By a curious contrast, the only two European countries where, in the absence of a settlement to the contrary, independence of the wife’s property was recognized, were Russia and Italy. But there is now a marked tendency towards contractual emancipation. Sweden adopted a law on this subject in 1874, Denmark in 1880, Norway in 1888. Germany followed, the Civil Code which came into operation in 1900 (Art. 1367) providing that the wife’s wages or earnings shall form part of her Vorbehaltsgut or separate property, which a previous article