Married Women's Property (Scotland) Act 1881

1881 CHAPTER 21

An Act for the Amendment of the Law regarding Property of Married Women in Scotland.

[18th July 1881]

WHEREAS an Act was passed in the fortieth year of the reign of Her present Majesty, entitled the [40 & 41 Vict. c. 29.] Married Women's Property (Scotland) Act, and it is just and expedient to protect, to the further extent herein-after provided" for, the property of married women in Scotland:

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1 Wife married after date of Act to have separate estate in moveables.

(1) Where a marriage is contracted after the passing of this Act, and the husband shall, at the time of the marriage, have his domicile in Scotland, the whole moveable or personal estate of the wife, whether acquired before or during the marriage, shall, by operation of law, be vested in the wife as her separate estate, and shall not be subject to the jus mariti.

(2) Any income of such estate shall be payable to the wife on her individual receipt or to her order, and to this extent the husband's right of administration shall be excluded; but the wife shall not be entitled to assign the prospective income thereof, or, unless with the husband's consent, to dispose of such estate.

(3) Except as herein-after provided, the wife's moveable estate shall not be subject to arrestment, or other diligence of the law, for the husband's debts, provided that the said estate (except such corporeal moveables as are usually possessed without a written or documentary title) is invested, placed, or secured in the name of the wife herself, or in such terms as shall clearly distinguish the same from the estate of the husband.

(4) Any money, or other estate of the wife, lent or entrusted to the husband, or immixed with his funds, shall be treated as assets of the husband's estate in bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the value of such money or other estate after but not before the claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied.

(5) Nothing herein contained shall exclude or abridge the power of settlement by antenuptial contract of marriage.

2 Rents of heritable property to be separate estate in wife.

Where a marriage is contracted after the passing of this Act the rents and produce of heritable property in Scotland belonging to the wife shall no longer he subject to the jus mariti and right of administration of the husband.

3 How far Act to apply to marriages contracted before its passing.

In the case of marriages which have taken place before the passing of this Act:

(1) The provisions of this Act shall not apply where the husband shall have, before the passing thereof, by irrevocable deed or deeds, made a reasonable provision for his wife in the event of her surviving him:

(2) In other cases the provisions of this Act shall not apply except that the jus mariti and right of administration shall be excluded to the extent respectively prescribed by the preceding sections from all estate, moveable or heritable, and income thereof, to which the wife may acquire right after the passing of the Act.

4 In case of marriages contracted before Act parties may come under its provisions by deed.

It shall he competent to all persons married before the passing of this Act to declare by mutual deed that the wife's whole estate, including such as" may have previously come to the husband in right of his wife, shall be regulated by this Act, and upon such deed being registered in the register of deeds at Edinburgh or in the Sheriff Court register of the county or counties in which the parties reside, and being advertised in terms of the schedule in the Edinburgh Gazette and three times in two local newspapers circulating in such county or counties, the said estate shall be vested in her as herein-before provided, and subject to the provisions of this Act; provided that the said estate (except such corporeal moveables as are usually possessed without a written or documentary title) is invested, placed, or secured, in the name of the wife herself, or in such terms as shall clearly distinguish the same from the estate of the husband; but no such deed shall be of any effect as against any debt or obligation contracted by the husband prior to the date of the deed being so advertised and registered.

5 Husband's consent dispensed with in certain cases.

Where a wife is deserted by her husband, or is living apart from him with his consent, a judge of the Court of Session or Sheriff Court, on petition addressed to the court, may dispense with the husband's consent to any deed relating to her estate.

6 Eight given to husband in wife's moveable succession.

After the passing of this Act the husband of any woman who may die domiciled in Scotland shall take by operation of law the same share and interest in her moveable estate which is taken by a widow in her deceased husband's moveable estate, according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thereof, as the case may be.

7 Children of women dying domiciled in Scotland to have right of legitim, &c.

After the passing of this Act the children of any woman who may die domiciled in Scotland shall have the same right of legitim in regard to her moveable estate which they have according to the law and practice of Scotland in regard to the moveable estate of their deceased father, subject always to the same rules of law in relation to the character and extent of the said right, and to the exclusion, discharge, or satisfaction thereof, as the case may be.

8 Exempting contracts and certain legal rights from operation of Act.

This Act shall not affect any contracts made or to be made between married persons before or during marriage, or the law relating to such contracts, or the law relating to donations between married persons, or to a wife's non-liability to diligence against her person, or any of the rights of married women under the recited Act.

9 Short title.

This Act may be cited as the Married Women's Property (Scotland) Act, 1881.

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