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"Walton, LL.D., Advocate of the Scottish Bar and of the Bar of Montreal ; Dean of the Faculty of Law and Professor of Civil Law, McGill ' University, Montreal. Ot?ier Prorinee.s: McGregor Young, K.C. M.A,, Professor of Constitutional Law and International Law at the University of Toronto : Lecturer to the Law Society of Ontario. A. H. F. Lefkoy, K.C, M.A., Professor of Pioman Law and Jurisprudence, University of Toronto. Laic of the 1/mpire of India : Sir E. J. Trevelyax, D.C.L., Eeader in Indian Law to the University of Oxford, formerly a Judge of the High Court of Bengal. Moman-Dntcli and Dutch Law: W. R. BissCHOPP, LL.D. (Leyden), of Lincoln's Inn, Barrister-at-Law, Legal Adviser to the Dutch Legation, London, and Lecturer on Eoman-Dutch Law to the Council of Legal Eilucation established by the Inns of Court. Anxtrlan Laiv : Felix Mayer, LL.D., Sections) at in the Ministry of Justice, Vienna, and Official Eeferee in Commercial and Insurance Law. Belgian Law: Gaston de Leval, Avocat a la Cour d'Appel, Brussels, Legal Adviser to the Embassies of Great Britain and United States. Civil Imw : J, Mackintosh, Advocate of the Scottish Bar, Professor of Civil Law in the University of Edinburgh. French Law : J. T. B. Sewell, LL.D., Solicitor, Legal Adviser to the British Embassy, Paris. German Law : Ernest J. Schuster, LL.D. (Munich), of Lincoln's Inn, Barristcr-at-Law. Hiuujarla n Law : Charles Szladits, LL.D., Judge of tlie Eoyal Court of Justice. Budapest, and Lecturer at the Univei-sity at Budapest. liMllan Law : ']'. P.oston Bruce, of the Middle Temple, Barrister-at-Law. Seot.^ Law : James Macdonald, Advocate of the Scottish Bar. Spanliih Law : E. M. Underdown, K.C, of the Inner Tuniplo. and Corresponding Academician of the Koyal Academy of Legislation and Jurisprudence of Madrid. Swixx Laic : J. F. ISELIN, of the Inner Temple, Barristcr-at-Law. Laiv of United States: Flr.Mtv Stephen, <>f Ih'j Middle Temple, l!arrister-at-Law, and the Illinois Bar. AiiTiii I! K. Kt;ilN, Counsellnr-ai-Law, New York. THE COMPARATIVE LAAV OF MAEEIAGE AND DIVOECE ryDEU THE aKyEiiAL ijuitoesiiip oe ALEXANDER WOOD RENTON, OF gray's inn, BARRISTEK-AT-LAW, PUISNE JUSTICE OV THE SCl'REME COUKT OF CEVLOX, FORMERLY JUDGE OF THE SUPREME COURT OF MAURITIUS. GEOEGE GEENVILLE PHILLIMOEE, B.C.L., OF THE MIDDLE TEMPLE, BAREI8TER-AT-LA\V. (.REPRINTED FROM I^URGE\S COMMENTARIES ON COLONIAL AND FOREIGN LAWS.') LONDON ; SWEET & ]\L\XWELL, Limited, STEVENS & SONS, Limited, 3, CHANCERY LANE, W.C. 119, 120, CHANCERY LANE, W.C. 1910. BRADBURY, AGNEW, & CO. LD., PRINTERS LONDON AND TONBRIDGE. PREFACE. This work forms the third vokime of the second edition of Burge's Commentaries on Colonial and Foreign Law, originally pub- lished in 1838, which deals with the laws of Marriage and Divorce in the principal legal systems of the world. Those systems include the Roman Civil law, the Canon Law, the Eoman-Dutch law, the ancient and modern French law, such typical modern systems as^ the Codes of Belgium, Italy, Spain, Germany, Austria, Hungary, and Switzerland; the laws of the British Dominions and the United States, and such Oriental systems as the Hindu and Muhammadan laws in British India, the Buddhist law in Burmah, the laws of China, Japan and Siam ; and the rules of Private International Law. As regards the British Dominions the common law is the main foundation of the law in the Colonies settled by Great Britain ; the Eoman Civil law is the basis of the law of France, which still survives in the possessions originally French, such as the Coutume of Paris in Quebec and St. Lucia, the Coutume of Normandy in the Channel Islands, and the Code Civil in Mauritius ; the Pioman-Dutch law continues in force in the Union of South Africa, Ceylon and British Guiana ; the law of Spain (now to a very limited extent) in Trinidad ; the Ottoman law in Cyprus ; and thie Italian law has been largely adopted in Malta. (Marriage is the most important branch of the law of Persons; and the constitution of this status, its attributes and consequences as regards persons and property, and its dissolution during the lives of the spouses have always engaged in a pre-eminent degree the consideration of legislators and jurists. The international aspect of the status is now mainly regulated for the nations of Continental Europe b}- the recent Hague Convention on marriage and divorce, which, proceeding on lines generally accepted by jurists of all nations, has to some extent initiated an uniform private inter- national law of marriage. The Anglo-Saxon nations, Great Britain and the United States (whose Courts are perhaps more 240055 Yl PREFACE. familiar than those of any other countries with the problems of reconciling conflicting systems of law, both external and internal), have not as yet taken any part in framing these international agreements for the regulation of conflicts between the different national systems. The Editors have to express their indebtedness to the following persons, besides the Assistant Editors, for most valuable help with contributions to and revision of portions dealing with special subjects : — M. I'Abbe Boudinhon, Paris, the Reverend Dr. Adrian Fortescue, the Reverend T. A. Lacey, the Reverend Canon W. J. Oldfield, the Reverend W. Sadler, Mr. J. Arthur Price, Barrister-at-Law, Miss Margaret Dampier, and Mr. Charles G. Saunders, Boston, for the Canon Law ; H.R.H. Prince Rajburi Direkhiddi, Minister of Justice, Bangkok, for the law of Siam ; Mr. J. Bromley Eames, Barrister- at-Law, for the law of China; Mr. J. S. Henderson, Barrister-at- Law, for the laws of the West Indies and Trinidad as regards married women's property; Moung Tun Lwin, K.S.M., Rangoon, for the Buddhist law in Burmah ; Mr. J. Arthur Barratt, of the United States Supreme Court Bar and English Bar, for a part of the law of Divorce in the United States ; Professor Oscar Platou, of the University of Christiania, for the Divorce laws of the Scandi- navian countries ; Mr. F. Fitzgerald, of the New South Wales Bar and English Bar, for the law of Divorce in the Australian States ; Dr. David Soskice, of the Bar of the High Court of St. Petersburg, for the law of Russia ; Mr. J. Lister Codlee, for the marriages of members of the Society of Friends ; Mr. A. Hilgrove Turner, Attorney-General, Jersey; Mr. Edward Ozanne, K.C., Attorney- General, Guernsey, and Mr. G. A. Ring, Attorney-General of the Isle of Man, for the law of Marriage and Divorce generally in these Possessions. They liave also to acknowledge the valuable assistance of Mr. Leonard T. Ford, Barri,stcr-at-Law, Lincoln's Inn, in compiling the taljles of cases and authorities, and generally preparing the volume for the press. A. W. R. G. G. P. September, 1910. TABLE OF CONTENTS. Preface Table op Authorities. Table of Abbreviations . . . . Table of Cases . . Introduction: Status of Markiage or thk IIelation op Husband and Wife PAGE V xi XX i sxv CHAPTER I. Principal Original Systems of Marriage Law Section I. — Roman Law .... „ II. — Roman-Dutch Law „ in. — Canon Law of the Western Church „ IV. — Canon Law of the Eastern Church ;, V. — Oriental Systems .... ■1—75 4 ' ]() 15 u- 51 i- 61 v^ CHAITKR If. Capacity for Marriage Section I. — Roman-Dutch Law ....... ,. 1 1. — Laws of France, Quebec, St. Lucia, Mauritius, Seychelles, and Modern Continental Systems . ,, III. — Laws of British Dominions and United Slates . 70— 140 76 97 123 CHAPTER in. The Marriage Ceremony 117—218 Section I. — Roman-Dutch Law 118 „ 11. — Laws of France, Belgium, Germany, Austria, Hungary. Italy, Spain, and Switzerland 150 ,, HI. — Laws of British Dominions and United States . . 171 CHAPTER IV Nullity of Marriage 219—239 CHAPTER V. Constitution of Marriage : Private International Law 210—273 CHAPTER YL Personal Capacities of Husband and Wife Introductory Section I. — Roman- Dutcli Law .... ,, 11. — Laws of France. Quebec, St. Lucia, Mauritius and Seyclielles, and Continental Systems ,, 111. — Laws of British Dominions and United States ,, IV, — Laws of India, Burmah, China, Japan, and Siam 274—358 274- 279 300 326 352 Yin TABLE OF CONTENTS. CHAPTER YII. PAGE Personal Capacities of Husband and Wife : Private Inter- national Law 359— 370 CHAITKU \111. Effect of Marriage on Property of Husp.and and "Wife Koman Law 380—390 CHAPTEll IX. Effect of Marriage on Property of Husband and Wife : EoiiAN-DuTCH Law 391— 47r> Section I. — The Statutory Pieginie ...... 391 II. — The Contractual Regime 443 CHAPTER X. Effect of Marriage on Property of Husband and Wife in France, Belgium, Quebec, St. Lucia, Mauritius, Seychelles AND Channel Islands Introductory Section 1. — The Regime of Community ,. II. — The System of Dower in Quebec and St. Lucia ,, III. — The Dotal Regime in France ,. IV. — Donations between Spouse? ,. V. — 3Iarriage Contracts „ YI. — Law of Channel Island? .... 476- -0( ( 47r. 480 -.34 r>49 r.fii r.7i CHAPTER XI. Effect of Marriage on Property of Husband and "W Continental Systems Section I. — Laws of Italy and Malta „ II. — Law of Spain .... ,, III. — Law of (iermany .... ,, lY. — Laws of Austria and Hungary „ V. — Law of Switzerland (1) Existing Law . (2) Federal Code . i78- -624 .583 r)9o (107 CIO 611 616 CHAPTER XIL Effect of Marriage on Property of Husband and Wife Law of Scotland 62.5—633 CHAPTER XJII. Effect of Marriage on Property of Husband and Wife : Law of England (and Ireland) 664- "29 CHAPTER XIV. Effect of Marriage on Property of Husband and Wife : Laws of other P.ritish Dominions. United States, India, I'.UHMAH, China, .Japan, and Siam . . . . . 730—760 Section I. — Laws of British Dominions 73tt ,. II.— Law of I'nited States 7;".! ,. III.— Laws of India, P>urmah, China, Japan, and Siam 7.-)tV TABLE OF CONTENTS. IX CHAPTER XV, Effect of MARRiAaE on Property of Private International Law- Husband AND Wife PAGE re 1 —805- CHAPTKPt XVI. Divorce Introductory ...... Section I. — Roniaii-Dutcli Law II. — Laws of France and Belgium III. — Other Continental Systems . IV. — Laws of British Dominions and United States V. — Laws of India, Burmah, China, Japan, and Siam 80(1 •10 + 8(i(t. 812 S2'.*' 8HS s.it; 8'.tr^ CHAPTER XVIJ. Divorce : Private International Law . 005— 0-t:^ Index 015- TABLE OF AUTHORITIES. In this lid the names of contrlhutovs to hyal journals and the officuil editions of the Bi'ltlslb and Colonial statutes and legal rej)ovts are not included. Ali, Araeer. iluhammadan Law. 2nd edition. 2 vols. Calcutta. 1894. Ali)hen, W. van. Papegaey ofte Formulicrboek van allerhande lequesten. Utrecht. 1740. Andreas, S. J. Fockema. See aUo Grotius. Het Oud-Nederlandsch Burgerlijk Recht. Haarlem. 1906. Bijdragen tot de Nederlandsche Rechts geschiedems. 4 vols. Haarlem. Annali, delia Giurisprudenza Italiana. Florence. Yearly. Anniraire de legislation etrangere. Paris. [In progress.] ArgentraBus. lier. Miss M. G. The Orthodox Church in Austria-Hungarv, L Hermannstadt. London. 1905. D'Argentre, Bertrandus. Commentarii in patrias Brilonum leges. Paris. IC.Gl. Davidson, Charles. Concise Precedents in Conveyancing. 18tli edition. London. 1904. Daya Bhaga. See Colebrooke. Demangeat sur Foelix. Sre Foelix. Demolombe, C. Cours de Code Napoleon. 2nd edition, 19 vols. Paris. 1858 — 1862. Denisart. J. B. Collection de decisions nouvelles. 9 vols, in 13. Paris. 1783 — 1790. Dernburg. Das Burgcrliches Becht des deutsches Reichs. 3 vols. 1899 — 1901. Despagnet, F. Cours de Droit International Public. Paris. 1894. Dcuntzer, L H. Den nordisk Famislie og Arveret. Kiobenliavn. 1878. Dansk Familierret. Kiobenhavn. 1892. 1 Mcey, A. V. A Digest of the Law of England with reference to the Conflict of Laws. 2nd edition. London. 1908. Digest. Sre Justinian. Dumat, Jean. The Civil Law in its Natural Order, together with the Publick Law. 2 vols. London. 1737. Duckworth, Rev. H. T. F. Chuich of Cyprus. London. 1900. Du Moulin, Charles. Les Coutumes generales et particulieres de France et des Gaules. 2 vols. Paris. 1()64. Duparc, Poullain. Principes du droit fran(;ais suivant les maximes dc Bretagnc. 12 vols. Rennes. 1767 — 1771. Duplessis, Charles. Sur La Coutume de Paris. 2 vols. Paris. 1754. Duranton, Alexandre. Cours de Droit Fran^ais, 22 vols. Paris. 1844. Duvergier. See TouUier. Encyclopaedia Britannica, 9th and 10th editions. 35 vols, Edinburgh. 1875 — 1903. Encyclopfedia of the Laws of England. 2nd edition. London, 1900. [Li progress.] Encyclopfedia of the Law of Scotland. 14 vols. Edinburgh. 1896 — 1904, Erskiue, John. Institute of the Law of Scotland. 2 vols. Edinburgh. 1871. Esmein,A. Le droit canoniijue. Paris. 1897. Everhardu.s, Nicolaus (Junior). Consilia. 2vols.ini. Augustae Vind. 1603. Foelix, J.J. G. Traite du droit International Prive. 3rd edition, par C. Demangeat. 2 vols. Paris. 1856. Foote, J. Alderson. Private International Jurisprudence. 3rd edition. London, 1904. XIV TABLE OF AUTHORITIES. Foro Italiano. Eaccolta (w)iere no specific reference) and riCpertoiio, Eome. 1876. [In progress.] Forsyth, William. Cases and Opinions on Constitutional Law. London. 1869. Fortescue. Rev. Adrian. Orthodox Eastern Church. Catholic Library. London. 1907. Fortescue, Rev. E. F. K. The Armenian Church. London. 1872. Eraser, Lord. Treatise on Husband and Wife. 2nd edition, 2 vols. Edinburgh. 1876—1878. Friedberg. Lehrbuch des Katholischen und Evangelischen Kirchenrechts. ■"jth edition. B. Tauchnitz. Leipzig. 1903. Froland. Memoirs concernant la Nature et la Qualito des Statuts. 2 vols. Paris. 1729. Fuzier-Herman. Code Civil annote. 4 vols. Paris. 1881—1898. Gaill, Andreas. Practicarum Observationum. Colonia; Agrippinaj. 1721. Gains. Institutes. Garsias, Joannes. De Conjugali Acquasstu. Amstelaedami. 1668. Gemmill. Parliamentary Divorce in Canada. Toronto. 1889. Gibbon, Edward. The History of the Decline and Fall of the Roman Empire. Edited by J. B. Buiy. 7 vols. London. 1896—1900. Gibson, Edmund. Codex Juris Ecclesiastici Anglicani. 2nd edition. Oxford. 1761. Gilbert, h^ir Jeffrey. The Law of Uses and Trusts, together with a Treatise on Dower. 3rd edition. London. 1811. Gillespie, G. R. Translation of Bar's Private International Law. See Bar. Giraldus de Barri (Silvester) Cambrensis. Itinerarium Kambrire et Descriptio Kambrife. Edited by the Rev. James F. Diniock. 1867 — 1877. Giurisprudenza Italiana (Bettini). Rome, Turin. Yearly. Godolphin, John. Repertorium Canonicum. 2nd edition. London. 1680. Goris. L. Adversariorum juris subcisivorum ad lucem consuetudinis. Arnliem. 1635. Gousset, Jean. Les loix municipales et Coutumes generales du bailliage de Chaumont en Bassigny. Chaumont. 1722. Groenewegen, Van der j\lade, S. a. Tractatus de legibus abrogatis. Amstelaedami. 1669. Grotius, Hugo. Inleydinge tot de HoUandsche Rechtsgeleerdheyd. Amsterdam. 1767. [See c/Z.v() vol. i., p. 89, n.] Honderd Rechtsgeleerde Observatien. 2 vols, 's Gravenhage. 177G. The Opinions. Translated by D. P. de Bruyn. London. 1894:. Annotationes ad (irotiura. By Fockema Andrea>. Gubbins, J. H. Civil Code of Japan, 2 vols. Tokio. 1897—1899, Guernsey. Recueil d'Ordonnances, \'>')ii — 1900. 4 vols. Guernsey. 18.52 — 1900. Guillouard. Traite du Contrat de Mariage. 3rd edition. 4 vols. Paris. 1895. Guthrie. See Savigny. Hammick, J. T. Marriage Laws of England. 2nd edition. London, 1887. Hasselt, J. J. van. Rechtsgeleerde brieven. Utrecht. 1782. Heard, Albert E. The Russian Church and Russian Dissent, kc. London, 1887, Heineccius, J. Gottlieb. Oitera Omnia. 13 vols. Gcncvaj. 1747 — 1771. Henriques. P. Jewish Marriages and the English Law. 1909. Henrys, Claude. (Euvres. 6th edition. 4 vols. Paris. 1772. Hertius. Commentationes atque opuscula de selcctis et rarioribus ex Jurispru- dentia Universali, Publica, Feudali et Romana, nccnon Historia Germanica, Argumentis. 2 vols. Francof. ad Moenum. 1737. Hirsh, Hugo. Tabulated Digest of the Divorce Laws of the United States, New York. 1901. HoUandsche Consultation. Sec Consultatien. Holtzendorff, Franz von. Encyklopiidie der Rechtswissenschaft. 2 vols, Leipzig. 1904. Hotmanus, Franciscus. Opera, 3 vols, Genevte. 1599— ICOO. Hubbell, J. H. Legal Directory. New York, 1908, Huber, Eugen, System und Geschichte des Schweizcrischeu Privatrechts. 4 vols, Basel. 1886—1893. HuVjer, Ulrich. Hedendaegsche Rechtsgcleerhcyt, Beginselen dor fricsche reclits- kunde. Amsterdam, 1768, TABLE OF AUTHORITIES. XV Huber, Ulric. Opera Minora. 2 vols. Trajecti ad Rhenum. 174fi. Praelectiones Juris Komani. 3 vols. Halae Saxorum. 1078. I'raelectionum Juris Civilis. 8 vols. Francofurti. 1749. Juris Tublici Universalis. Francofurti. 17r>2. Hue, T. 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Zyl, van. Judicial Practice in South Africa. 2nd edition. Cape Town. 1902. 62 ABBEEVIATIONS USED IN THE CITATION OF EEPOETS. A. C. . A. C. R. Act. . Ala. . All. . Amer. Dec. Amer. Rep. Am. St. Rei Andr. . Ap. R. App. Cas. Atl. . Australia C B. & Ad. B. & Aid. B. & C. B. & P. B. & S. Barb. Beav. . Beng. L. R. Beng. S. R. Binn. . Bla. . Blatchf. Bom. H. C. Bridg. . Bro. P. C. Buch. . Burr. . C. B. . C. B. N. S. C. L. J. C. L. R. C. L. T. C. M. & R. C. P. D. C. Rob. C. T. R. C. W. R. C. &E. C. & J. C. & M. C. &P. Calc. . Calc. W. R Calc. W. N Ch. D. CI. & F. Conn. . Cowp. L. R R. C. R Appeal Cases. Ceylon Appeal Court Reports. Acton (Privy Council). Alabama. Allahabad. American Decisions. American Reports. American State Reports. Andrews. Reports of Cases in Court of Appeal, Ontario. Appeal Cases. Atlantic Reporter (United States). Australian Commonwealth Law Reports. Barnewall and Adolphus. Barnewall and Alderson. Barnewall and Cresswell. Bosanquet and Puller. Best and Smith. Barbour's Reports (American). Beavan. Bengal Law Reports. Bengal Select Reports. Binney, Pennsylvania. I'lackstone. Blatchford (United States, Federal Reports). Bombay High Court Reports. Bridgman. Browne's Parliament Cases. Buchanan (Cape Colony). Burrow. Common Bench Reports. Common Bench New Series. Canada Law Journal (Toronto). Commonwealth Law Reports (Australia). Cape Law Times. Crompton, Meeson and Roscoe. Common Pleas Division. Christopher Robinson. Cape Times Reports. Calcutta Weekly Reporter (Civil Rulings). Cababe and Ellis. Crompton and Jervis. Crompton and Meeson. Carrington and Payne. Calcutta. Calcutta Weekly Reports. Calcutta Weekly Notes. Chancery Division. Clark and Finnelly, House of Lords. Connecticut. Cowper. XXll ABBREVIATIONS USED IX THE CITATION OF REPORTS. Cox, Eq. Ca. Cox C. C. . Curt. . Cyp. L. R. . Dec. S. C. . De G. F. J. De G. & J. . De G. J. ic S. De G. & S. . De G. M. & G. D. ic C. Dod. . Dor. A. C. . Dowl. P. C. E. & E. E. D. C. . Esp. . Ex. . Ex. D. Fac. Coll. . Fac. Dec. . Fed. Rep. . Ga. . Giff. . Gr. . H. & C. H. & M. H. & N. . H. Bl. . H. L. C. . Hagg. Hagg. Adm. Rep Hagg. C. . Hagg. Eccl. How. . III. Ind. . IredeU (N. C.) Ir. Eq. R. . Ir. L. R. . I. L. R. All. I. L. R. Bom. I. L. R. Calc. I. L. R. Mad. J. J. R. N. S. S. C. Rep J. & H. Jac. . James N. S Jur. Jur. (N. S.) K. B. . K. & J. Kan. . Kay Kerr N. B. . L. C. J. L. C. R. . L. N. . L. R. Ch. . L. R. C. P. . L. R. E. C. . L. R. H.L. Sc L. R. Ind. App. L. R. ]'. C. . Cox, Equity Cases. Cox's Criminal Cases. Curteis' Ecclesiastical Reports. Cyprus Law Reports. Decisions of the Supreme Court of Mauritius. De Gex, Fisher and Jones. De Gex and Jones. De Gex, Jones and Smith. De Gex and Smith. De Gex, Macnaghten and Gordon. Dow and Clark. Dodson, Admiralty. Dorion (Quebec). Dowling, Practice Cases (English). Ellis and Ellis. Eastern District Court Reports (Cape Colony). Espiuasse. Exchequer. law Reports, Exchequer Division. Faculty Collection (Scots). Facult}^ Decisions (Scots). Federal Reporter (United States). Georgia. Gififord (English). Grant's Canadian Reports. Hurlstone and Coltman. Hemming and Miller. Hurlstone and Norman, Henry Blackstone. House of Lords Cases. Haggard. Haggard's Admiralty Re[)0rts. Haggard's Consistory Reports. Haggard's Ecclesiastical Reports. Howard (United States). Illinois. Indiana. Iredell's North Carolina. Irish Equity Reports. Irish Law Reports. Indian Law Reports, Allahabad. Indian Law Reports, Bombay. Indian Law Reports, Calcutta. Indian Law Reports, Madras. Journal du droit International Prive. New Zealand Jurist Reports, New Series, Supreme Court. Johnson and Hemming. •Jacob's Reports. James's Nova Scotia Reports. Jurist Reports. Jurist, New Series. King's Bench. Kay and Johnson. Kansas. Kay's Reports. Kerr's New Brunswick. Lower Canada Juiist. Lower Canada Reports. Legal News, Montreal. Law Reports, (Jhancerj^ Apjieal Cases. I^aw Reports, Common Pleas. Law Reports, Equity Cases. Law Reports, Scotch and Divorce Appeals, House of Lords. Law lieports, Indian Api)ea]s. Law Re|)orts, Privy Council. ABBREVIATIONS USED IN THE CITATION OF REPORTS. XXllI L. R. Q. B. . L. K. Sc. App. L. T. . L. 11. A. k E. L. R. P. & D. La. Ann. M. L. R. S. C. M. L. R. . M. P. C. M. & Rob. . M. & S. M. & W. . Mac. H. L. Ca Mac. H. L. Pract. Mad. . Mm]. H. C. R. Madd. Man. R. Man. & G. . Man. ct R. (M.C.^ Mass. . Me. . Mer. . Men. . Milvv. Prerg. Miss. App. . Mo. . Mod. . Moo. Ind. App. Ca. Mor. Diet. Mumf. Myl. & Cr. N. B. R. N. C. . N. Car. N. E. . N. H. . N. J. L. N. L. R. N. S. . N. S. W N. S. W. W. N. N. Y. . N. Y. S. C. N. Y. Supp. Natal L. R. Neb. . 0. L. R. 0. R. . Ohio St. P. C. . P. P. . P. D. . P. P. Wms. . Pa. L. J. . Pa. St. Pat. . Perry Or. Ca. Pick. . Q. 15. . Q. B. D. . Q. L. R. . R. R. de J. R. J. Q. Q. B. R. J. Q. S. C. L. R. Law Reports, Queen's Bench. Law Reports, Scotch Appeals. Law Times. Law Reports, Admiralty and Ecclesiastical. Law Reports, Probate and IMvorce, Louisiana Annual. Manitoba Law Rei)orts, Sufireme C!ourt, Maritime Law Reports. Moore's Privy Council Cases. Moody and Robinson. Maule and Selwyn. Meeson and Welsby. Macqueen's Scotch Appeal Cases. ALacqueen's House of Lords Cases. Madras. Madras High Court Reports. Maddocks. Manitoba Reports. Manning aii(l Granger, C. P. Manning and Ryland, Magistrates Cases. Massachusetts. Maine. Merivale. Menzies (Cape Colony). Milward's Reports (Ireland). Missouri Appeals. Missouri. Mode 111. Moore's Indian Appeal Cases. Morrison's Dictionary of Decisions (Scotland). Mumford, Virginia. Mylne and Craig. New Brunswick Reports. Notes of Cases. North Carolina. North Eastern (United States). New Hampshire. New Jersey Law Reports. Ceylon New Law Reports. Nova Scotia Reports. New South Wales Law Reports. New South Wales Weekly Notes. New York. New York Superior Court. New York Supplement. Natal Law Reports. Nebraska. Ontario Law Reports. Ontario Reports. Ohio State. Privy Council. Parliamentary Papers. I'robate Division. Probate. Peere Williams. Pennsylvania Law Journal. Pennsylvania State. Raton's House of Lords Appeal Cases (Scotch). Perry's Oriental Cases. Pickering (Massachusetts). Queen's Bench, Adolphus and Ellis, N. S. Queen's Bench Division. Qucijec Law Reports. R'jscoe (Cape Colony). Revue de Jurisprudence (Quebec). Rapports .Judiciaires, Quebec, Queen's Bench. Rapports Judiciaires, Quebec, Superior Court. XXIV ABBREVIATIONS USED IN THE CITATION OF REPORTS. Kep, N. Y Ram. . Raym. (Ld Rep. . Rob. Adm. Rob. Eccl. Rolle Abr. Rul. Cas. Russ. . S. S. A. R. S. C. C. S. C. R. S. 0. R. Can S. W. . Salic. . Sandf. Ch. Saw. U. S. Serg. & R. Sess. Ca. Sim. . Sim. & St. Smith L. C Stark. N. P, Sh. & Mc Str. . St. Tri. Sup. Ct. Swa. . Sw. & Tr T. L. R. T. R. . T. S. . Iamb. Tenn. T. & R. Tr. Off. Rep U. C. C. P. U. C. R. U.S. . Upp. Can. Q. B. V. L. R. V. & H. Vent. . Vern. . Ves. Sen. Ves. . W. N. W. R. W. & S. Wall. U. S. Watts & Serg. Wend. N. Y. \V. T. Wil.s. . Wis. . Y. k C. C. C. Ranialunga (Ceylon). Lord Raymond's Reports, K. B. Coke's Reports. Robinson's Admiralty Reports. Robertson's Ecclesiastical Reports. Rolle's Abridgment. Ruling Cases. Russell. Searlp (Cape Colony). South African Republic. Supreme Court Circular (Ceylon). Supreme Court Reports (Cape Colony). Supremo Court of Canada, Reports. South Western Reporter (United States). Salkeld. Sandford's Chancery, New York. Sawyer, United States. Sergeant and Rawle (Pennsylvania). Sessions Cases (Scots). Simon's Reports. Simon and Stuart, Chancery. Smith's Leading Cases. Starkie's Reports, Nisi Prius. Shaw and Maclean (Scots). Strange's Reports. State Trials. Su[)erior Court. Swa bey. Swabey and Tristram. I'imes Law Reports. Term Reports. Transvaal Supreme Court. Tambiah's Reports (Ceylon). Tennessee. Turner and Russell. Official Reports of High Court of Transvaal Republic. Upper Canada, Common Pleas. Upper Canada Reports. United States. Upper Canada, Queen's Bench. Victoria I^aw Reports. Vesey and Beames' Reports. Ventris' Reports. Vernon's Reports. Vesey Senior, Reports. Vesey Junior, Pieports. Weekly Notes, Law Reports. Weekly Reporter. Wilson and Shaw. Wallace, United States. Watts and Sergeant, Pennsylvania. Wendell, New" York. White and Tudor's Leading Cases in Equity. Wilson. Wisconsin. Younge and CoUyer, Chancery Cases. In this table, Reports whieli arc not identified with tlie name of a particular country are English. TABLE OF CASES. 95 I.I L. R A. r. B. (1612), Mor. Diet. 1648 .... (18(i8), L. K. 1 P. & I). 55!) . A. t\ M. (1884), 10 P. D. 178 A. B. V. C. D. (185;-5), 15 Dunlop, 372 ; 16 Dimloo, iii. Abdy r. Abdy (189'J). J. 8U4 . . . . " . Abeygoonesekere r. Abeyjroonesekere (1909), 12 N. L. E Adam r. Adam's Trustee "(1894), 21 Kettie, 676 Administrator-General of Madras r. Anandachari (1886) Aizunnissa Khatoon r. Karimoiinissa Khatoon (1895), I. Alcock r. Smith. [1892] 1 Ch. 2.S8 .... Aldis r. Chapman, Selw. N. P. 232 Aldrovd r. Aldrovd, [1896] P. 175 .... Aleberrv r. Walby (1718), 1 Stra. 230 Alexandre r. Alexandre (1870). L. R. 2 P. & M. 164 Alison's Trusts. In re (1874), 81 L. T. 688 Allan r. Earl and Countess of Southesk (1677), Mor. Diet. 6005 Allen, In re, [1894] 2 Q. B. 924 .... r. Allen (1859), 30 L. J. P. 2 . Alston r. Philip (lt;82), Mor. Diet. 6007 . Ambler, In re, [1905] 1 Ch. 694 .... Amcotts r. Catherich (1622). Cro. Jac. 615 Anderson v. Anderson (1684), Mor. Diet. 12,960 V. (1899). J. 1899, 825 r. Anderson's Trustee (1892), 19 Rettie, 684 r. Hay (1890), 55 J. P. 295 r. Meyer. 1 Menz. 204 .... r. Pignet (1872), L. R. 8 Ch. Andres r. Bastiana, Ram, 1860— 186-^, Andrews r. Ross (1888), 14 P. D. 15 Angus r. Ninian (1733), Mor. Diet. 4244 Anicet r. Boudon (1908). Dec. S. C. 1903 Ankerstein r. Clarke (1792), 4 T. R. 616 Annand v. Scott (1775), 2 Paton, 369 Annandale (M.) r. Scott (1711), Mor. Diet. 1.5.848 Anon. r. Anon. (1881), 4 S. C. C. 107 . ' . r. Drummond (1684), Mor. Diet. 6152 ■ r. Lawson (1797), Mor. Diet. 6157 . r. Livingstone (1666), Mor. Diet. 6153 . Anstruther r. Adair (1834), 2 My. & K. 518 . Anuze r. Fosse-Fromentin (1898), Sirev, 1902, i. 231 Api)letonr. Rowley (1869), L. R. 8 Eq. 189 . Ardaseer Cursetjee r. Perozeboye (1856), 10 Moo. P, Armitage v. Armitage (1866), L. R. 8 Eq. 843 V. Att.-Gen. [1906] P. 185 Armstrong, In re, Ex parte Boyd (1888), 21 Q. B. D. 264 In re, Ex parte Gilchrist (1886), 17 Q. B. D. r. Best (1893), 112 N. C. 59 . Armvtagc r. Armytage, [1898] P. 178 . Arrington r. Arrington (1889), 102 N. C. 491 Aschen's Executrix v. Blvthe, 4 S. C. R. 136 Ashcroft r. Ashcroft (1902), 71 L. J. P. 125 Ashruf Ali r. Ashad Ali (1871), 16 W. R. 260 Ash worth r. Outram (1877), 5 Ch. D. 928 Astell r. Hallee (1877), 4 Q. L. R. 120 . . 180 p. 133 C. C 369, 894, . 37r 90 521 8, 9 R. 9 Ma 23 Calc 14,91 466 30 . PACK 642 135 726 845 804 828 632 216 146 774 .331 874 667 869 256 843 713 934 . 866 . 842 694. 707 . 689 . 660 . 763 . 6.32 . 706 . 473 . 686 . 828 . 137 647, 648 . 304 . 667 . 340 . 687 . 827 . 345 . 345 . 345 , 799. 800 . 560 . 679 . 258 . 258 . 893 . 711 . 711 . 876 , 937, 988 . 929 467, 472 . 872 . 898 . 702 481, 783 XXVI TABLE OF CASES. Astley r. Astley (1828). 1 TLasg. Eccl. 714 Athertouf. Atherton (1900), 181 U. S. 155 Auchinleck r. Earl of Moiiteith (1675), Mor. Diet. 5879 Auge r. Daoust (1893), R. J. Q. 4 S. 0. 113 . Auguste Banking Co. r. Morton (1843), 3 La. Ann. 417 Aupj r. Lemotagner (1878), Dalloz, 1878, i. 113 Avakianr. Avakian (1905), GO A. 521 Ayerst r. Jenkins (1873). L. R. 16 Eq. 275 Ayres, In the Goods of (1883). 8 P. I). 168 B. V. A. (1891), 27 L. R. Ir. 587 .. . — r. B., .Sirey. 1903. iv. 1 Babapuile r. Rajaratnam (1900), 5 X. L. R. 1 . Bacon. In re, [1907] 1 Ch. 475 Badarannissa Bibi r. Mafiattada (1871), 7 Bom. L. li. 44 Bailet v. Bailet (1901), L. M. & R. xxvi. 347 . Bai Premkuvar r. Bhika Kallianji (1868), 5 Bom. H. C Baker r. Hall (1806), 12 Ye?. 497 . Ball r. Coutts (1813), 1 V. & B. 303 Banister r. Thompson, [1908] P. 362 Bank of Africa r. Cohen (1909), 25 T. L. R. 285 Bank of Toronto r. Perkins (1881), 1 Dor. Q. B. 3: Bankes, In re, [1902] 2 Ch. 333 Barber, Ex parte (1821), 1 G. & J. 1 r. Root (1813), 10 Mass. Rep. 265 . Barberet r. Barberet (1881), Sirev, 1884, ii. 146 Barnard r. Ford (1869), L. U. 4 Ch. 247 . Barnes i-.Toye (1884), 13 Q. B. D. 410 . Barnettf. Howard, [1900] 1 Q. B. 784 . Baron r. Baron (1908), 24 T. L. R. 273 . Barr ?•. Neilsons (1868), 6 Macph. 651 Barrere »•. Barrere (1819), 4 Johns. Ch. 196 . Barrett i: Barrett (1904), 20 T. L. R. 73 Barsalou v. Royal Institution (1896), R. J. Q. 5 Q. B. 383 Bartilmo r. Hassington (1632), Mor. Diet. 4222 Bartlet r, Buchanan, Feb. 21st, 1811, Fac. Coll. Bashall r. Bashall (1894), 11 T. L. R. 152 Batchelor, In re (1873), L. R. 16 Eq. 481 . Bateman r. Ross (1813), 1 Dow, 235 Bates c. Dandy (1741), 2 Atk. 207 , Bauffremont Case (1878), J. .505 Bauman r. Bauinan (1857), 18 Ark. 320 . Buzeley r. Fonlur (1S6S), L. R. 3 Q. B. 559 . Beale, In re (1876), 4 Ch. D. 246 .. . Beamish r. Beamish (1861), 9 H. L. C. 274 . Beattie r. Beattie(1866), 5 Macph. (Sess. Cas. 3rd ser.) Beattie's Trustees r. BcHtiie (1884). 11 Rettio, 840 r. Cooper's Trustees (1862), 24 Dunlo Beavis r. Maguire, 7 App. R. 704 Becket r. Becket (1760), 1 Dick. 340 Beckett r. Tasker (1887), 19 Q. B. D. 7 . Bedford r. Varnev (1762), 2 Hagg. C. 376 Beeby r. Beel)y (1799), 1 Hagg. Eccl. 790 Bell r. Bell, Feb. 22nd, 1812, Fac. Coll. . Bellamy. In re. Elder r. Pearson (1883), 25 Ch. D. 620 Bennett-. Davis (1725), 2 P. Wms. 316 . Beruier r. Gendmn (,1'^i'l). 17 Q. L. R. 377 . r. Proux (1899), 15 Q. L. R. 333 . Bernstein ?•. Bernstein, [1893] P. 292 V. liernstein's Executors (1897), 14 S. C. R 195 Bcsant, In re (1S79), 11 Ch. D. 508 . r. Wood (1.H79), 12 Ch. D. 6(15 Bcsscr. Pollochoux (1877). 73 III. 2.S5 Bessela r. Stern (1877), 2 C. P. D. 265 Best r. IJcst (1814), cited 2 Phill. 161 A. C. 81 519 161 209 694, 7 1 67 70 L. J 03 86 540 33 0, 67 91 246 , 71 xiv 33 PAGE 875 941 343 318 376 123 127 728 335 125 230 421 704 898 270 353 669 674 138 370 559 801 668 933 489 696 330 707 865 338 48 864 558 648 638 723 672 336 6, 677 932 893 331 715 177 257 649 661 738 670 724 243 875 316 (;76 701 518 518 867 467 354 3:!<; 77() 174 868 722, 7 TABLE OF CASES. XXVll 230 Best's Settlement, In re (1S74). L. R. IS Eq. ()86 . Betcher r. Betcher (1787). citeil 2 Pliill. 155 . Bethell, In re (1888), 38 Ch. D. 220 .... Bevan r. McMahon (18(51), 30 L. J. P. M. & A. (51 ; 2 S. & T. Bisfgart r. City of Glasgow Bank (187!)), 6 Kettie, 470 . Biiida v. Kauiisilia (ISiio), 1 L. R. 13 All. 12(5 . Birch r. Doui^das (ir)f>3), JMor. Diet. .0'.)61 Birkett r. Birkett (1908), it8 I;. T. 540 .... Birmingham Excelsior Money Society r. Lane, [lit04] 1 K. B Birtwhistle r. Vardill (182(i). 5 13. & C. 438 . Bissou V. Lamoureu.K (18t)7), 17 L. C. R. 140 . Black f. Fountain, 23 Gr. 174 Blackmore and Thorp r. l^rider (181), 2 Ilagg. C. 376 223, 244, 245, 247, 144 258 572 792 874 728 ^8, 260 243 XXYlll TABLE OF CASES. Brooke and Fremlin's Contract, In re, [1898] 1 Ch. fi47 Brookman r. Durkee (1907), 47 Wash. 978 Broomer r. Arthur, [1898] A. C. 777 Brown, In re, Ingall v. Brown, [1901] 1 Ch. 120 r. Att.-Gen. for New Zealand, [1898] A. C. 237 r. Benson (1803), 3 East, 381 i: Brown (1828). 1 Ha?g. Eccl. 523 II. Collins (1883), 25 Ch. D. 56 c. Dimblebv, [1904] 1 K. B. 28 r. Guv (1881), 5 L.N. Ill . Browne v. Browne. [1903] 1 Ch. 188 Bruce, In re (1832), 2 Cr. & J. 436 . r. Bruce (179(»), 2 Bos. &; P. 229 . V. Burko (1825), 2 Adams, 471 v. Glen (1761), Mor. Diet. 13,036 . Bruce and Henderson r. Henderson (1791), Mor. Diet. 4215 Brunet r. Eio^aud-Labens (1902), Sirey, 1903, ii. 101 Bryan, In re (1880), 14 Ch. D. 516 . Brvce's Trustees r, Brvce (1S78), 5 Rettie, 722 . Brydges r. Brydges (19(19), 25 '1'. L. E. 412 Bryson v. Menzies (1698), Mor. Diet. 58C)9 V. Munro's Trustees (1893), 20 Rettie, 986 Buckeridge r. Ingram (1795), 2 Ves. 652 . Buckinghamshire (Earl of) r. Drury (1761), 2 Eden, 69 Buckmaster i: Buckma'^ter (1887), 35 Ch. D. 21 Buckworth v. Thirkell (1784), cited 3 Bos. & P. 643 Burdon r. Burdon, [1901] P. 52 Burge-ss ;•. Burgess (1804), 1 Hagg. C. 384 i: (1817). 2 Hagg. C. 223 Burlen v. Shannon, 115 Mass. 438 Burn r. Farrar (1819), 2 Hagg. C. 369 Burnet r. Lepers (1665), Mor. Diet. 5863 . Burnett r. Kinaston (1700), Prec. Ch. 118 Burns r. State (1872), 48 Ala. 195 . Burrowes r. McKarquhar's Trustees (1842), 4 Dunlop, 1489 Burtis V. Burtis (1825), Hopkins Ch. 557 . r. ■ ■ (1894), 161 Mass. 508 : 37 N. E. 740 r. Thomson (1870), 42 N. Y. 246 . Burton r. Pierpoint (1722), 1 P. Wms. 78 Burtwhistle r. Vanlill (1840), 6 Bing. (N. C.) 385 Bustard's Case (1603), 4 Rep. 121 a . Butler, In re (188S),38 Ch. D. 286 . r. lUitlcr (1885). 14 Q. B. D. 831 . r. Gastrin (1722), Gilbert's Eq. Rep. 156 and Baker's Case (1591). 3 Rep. 25 a . Button r. McCauley (1862), 38 Barb. 413 . C. r. C. (1899), Montpellier, Dalloz, 1896, ii. 101 — r. — (190.5), 22 T. L. R. 26 . — 7-.T. (1852). Dalloz. 18.52, ii. 260 . Cain r. Cain (1S38), 2 Moo. P. C. 222 .. . Calcraft r. Harborough (Earl of) (1831), 4 C. ^: I'. 499 Callaye r. Winders (1891), Sirey, 1892. iv. 16 . Callow r. Callow (18,S6), 55 L. t. 151 CallwcU r. Calhvell (I860), 3 Sw. & T. 259. Camel r. Dlamini (1903), Transvaal High Court Re Cameron and Wells. In re (18H7), 37 Ch. D. 32 Campbell r. Campbell (1738), M(,r. Dirt. 13.O04 r. (1760), Jlor. Diet. 5944 . r. (1776). 5 Br. Su|)p. 627 . r. (1857), 5 \V. R. 519 r. (1867). L. R. 1 Sc. i: Div. IS: /•. Dent (1S38). 2 Moo. P. C. 292 r. French (1797), 3 Ves. 321 Capcll r. Powell (1864), 17 C. B. (N. S.) 713 . Carlylc r. Creditors (1725), Mor. Diet. 147 67:i PAGE 335, 696 789 572, 576, 802 128 333 329 116 675 707 314 335 792 792 188 662 647 275 '3. 700 629 872 643 647 685 723 726 679 869, 876 219, 259, 261 864 914 187 643 670 142 645 48 914 17o 701 261 688 701 714 59, 260 328 176 831 863 225 731 873 835 674 909 212 729 661 626 637 867 193 793 792 332 637 67; TABLE OF CASES. XXIX Carnegie's Case, cited 11 Ch. D. 512. Carnegie c. Clark (lt)77), Mor. Diet. 12,840 Carplin v. Clapperton (18()7), 5 Macph. 797 Carrington, E.k parte (1789), 1 Atk. 20() . Carruthers r. Johnston (I70t;), Mor. Diet. 15,816 Carse r. Burton (1747), Mor. Diet. (;024 . Carswell r. Carswell (1881), 8 Sess. Cus., 4tli ser. Carter v. Carter (1810), (5 Mass. Bep. 2«3 . r. McCaflFrey (1892), B. J. Q. 1 Q. B. 97 Carteret (Lord) r. Baschal (1783), 3 P. Wms. 200 901 L. C G. 9 Cartwright v. Cartwright (1853), 3 De U. M. & Castleman r. Jeffcries, 60 Ala. 380 . Catheart r. Union Building Society (1864), 15 Catterall r. Catterall (1847), 1 Bobertson, 580 • ■ r. Sweetman (1845), 1 Bobertson, 304 Caudell r. Shaw (1791), 4 T. B. 361 . Caverley r. Domony (1879), 9 Bueh. 205 . Chalmers v. Baillie (1790), Mor. Diet. 6083 r. Creditors (1720), Mor. Diet. 6056 Chamberlain r. Napier (1880) 15 Ch. D. 614 r. Williamson (1814). 2 M. & S. 408 Chapman r. Biggs (1883) 11 Q. B. D. 27 . r. Bradley (1863). 33 Beav. 61 . Cheely r. Clayton (1883), 110 U. S. 701 . Cheever v. Wilson, 9 Wallace, 123 Chetti r. Chetti, [1909] P. 67 . Chiappini (li. L.), In re (1872), 2 lUieh. 150 Chichester r. Chichester (1885), 10 P. 1). 186 Chiclet r. Ponceot (1883), Sirey, 1884, ii. 45 Chisholm r. Brae (1669), Mor. Diet. 6137 . Christian r. Christian (1897), 78 L. T. 86 . Chubb r. Stretch (1870), L. B. 9 Eq. 555 . Chudley r. Chudley (1893), 62 L. J. M. C. 97 Churchward r. Churchward. [1895] P. 7 . Churnside r. Currie (1789), Mor. Diet. 6082 Cinquin r. Lecocq (1902), Sirey, 1902, i. 305 Cipriano r. Cipriano (1878), Sirej', 1882, iv. 8 Citizens' Insurance Co. of Canada r. Parsons Clanton v. Barnes (1876), 50 Ala. 260 Clarges r. Albemarle (1691), 2 Vern. 245 . Clarke v. Graham (1821), 6 Wheaton's Bep. 597 Clauzonnier v. Borello (1902), Sirev. 1903, i. 88 Clayton r. Adams (1796), 6 T. B. 605 Cleaver r. Mutual Beserve Fund IJfe Association. Clerk r. Sharp (1717), Mor. Diet. 5996 . Clifford c. Baton (1827), 3 C. & P. 15 Cloete 1'. Cloete (1887). 5 S. C. B. 66 Clowes V. Jones (1842), 2 N. C. 1 Cocksedge v. Cocksedge (1844), 14 Sim. 244 . Coffey V. Coffey, [1898] P. 169 . Collins r. Collins (1884), 9 A. C. 205 ■ ■ r. Cory (1901), 17 T. L. R. 242 . CoUinet v. Co'llinet (1903). Sirey, 1903. ii. 190 . CoUis r. Hector (1875), L. B. 19 Eq. 334 . Colonial Bank v. Whinney (1886), 11 A. C. 440 Colvin r. Reed (1868), 55 Pa. 375 . v. (1867), 62 Pa. St. 375 Commonwealth r. Graham (1893), 157 Mass. 73 r. Lane (1873), 18 Amer. Rep. 514 r. Munson (1879), 127 Mass. 459 Compton r. Bearcroft (1767) 2 Hagg. C. 444, n. Condon c. Vollum (1887), 57 L. T. 154 . Conington r. Gilliatt (1876), W. N. 275 . Connelly r. Connelly (1851), 7 Moo. P. C. 438 . Connolly r. Woolrich (1867), 11 L. C. J. 197 . Constantinidi r. Constantinidi, [1903] P. 246 . (1881) E. 4t 7 A, 1892] (Mass ip. C IQ 48, 1 as. 9 B. 1 1, 2 47 44, 8 PAGE . 337 656 (;(;3 327 637 843 932 933 .559 669 386 1 1 1 4S1 ', 17 8. 265 177 827 472 338 650 800 . 175 707 . 728 . 914 . 915 2, 256, 360 472, 473 . 937 . 513 . 649 . 935 696, 708 . 866 . 869 . 340 . 563 . 123 . 195 . 789 . 720 . 793 . 309 . 327 335, 721 . 649 . 331 . 438 . 222 . 336 . 863 6. 858, 867 . 332 . 833 . 801 . 664 . 914 . 941 . 269 245, 256 48. 269 243, 245 . 354 . 673 . 869 . 178 8 !8, 869 XXX TABLE OF CASES. Converse v. Converse (1882), 5 L. N. 69 . Conway r. Bcazlev (1831), 3 Hasg. Eccl. 639 . Cook c. Cook (1883), 56 Wis, 195 ; 14 N. W. 33 Cooke v. Cooke (18(;3). 3 Sw. & Tr. 1G3 . Cooke's Trusts. In re (1887), 56 L. J. Ch. 637 . Cooper r. Cooper (1888), 13 A. C. 88 V. Crane, [1891] P. 369 ... r. Maalonald (1877), 7 Ch. D. 288 .... 679, 68 Coot r. Berty (1698), 12 Mod. Rep. 232 . Cope r. Burt (1809). 1 Hagg. C. 434 . Coppin r. Coppin (172.5). 2 P. Wms. 290 . Copsey r. Copsev, [1905] P. 94 Cork r. Baker (1725). 1 Str. 34 .... Cornat v. Cornat (1893). Sirev, 1894. i. 119 Cosio *•. De Bernales (1.S24), l" C. & P. 266 Countess of Caithness r. The Earl (1747), Mor. Diet. 602 Courtwright r. Courtwright, 26 Ohio L. J. 3U9 Cowan r. Yonne, &c. (1669), Mor. Diet. 12.942 Cowley i: Cowley. [li'Ol] A. C. 450 . Cox r. Cox, [1906] "P. 267 Craig V. Galloway (1861), 4 Macq. 267 . Craik v. Craik (1728), Mor. Diet. 12.984 . r. Penny (1891), 19 Rettie, 339 Cranstoun v. Wilkinson (1667), xMor. Dirt. 4227 Crawfurd v. Kennoway (1677), Mor. Diet. 12,934 Craycroff r. Morehead (1873), 67 N, C. 422 Crookes v. Fry (IS 17), 1 B. & Aid. 165 . . Cross V. Cross, 108 N.Y. 628 .... Cruickshanks r. Cruickshanks (1685), Mor. Diet. 12,964 Cuenod v. Leslie (1909), 25 T. L. R. 374 ; [1909] 1 K. B. 880 Culling f. Culling, [1896] P. 116 .... Cumming r. Kennedy (1697), Mor. Diet. 6443 . r. King's Advocate (1756), Mor. Diet. 15,854 Cunningham r. Cunningham (1814), 2 Dow, 482 Cnnninghame r. Cunninghame, Dec. 5th, ISIO, Fac. Coll Cunyngliame r. Cunynghame (1804), Mor. Diet. 13,029 Curtis v. Curtis (1905), 21 T. L. R. 676 . D. r. D. (1894), Sirey, 1896, ii. 142 . Dall v. Registrar of Deeds, 5 H. C. G. 184 ; C. L. J. v. (1888), 247 Dalle r. P. (1901), Sirey, 1902, ii. 206 Dalling r. McKenzie (1675), Mor. Diet. 6005 . Dalrymple v. Dalryniple (1811), 2 Hagg. C. 54 ; 17 Rul. Cas. 10 Daly ell v. Dal veil, Mav 30th, 1809, Fac. Coll. . Daniel r. Daniel (1887), 3 S. C. R. 231 . Daniel Moody, Ex parte (1905), 21 S. C. R. 381 Darleith r. Carni)bell (1702), Mor. Diet. 3113 . Dashwood r. Bulkcley (Lord) (1804), 10 Ves. 230 Davenport r. Karnes (1876), 70 111. 4()5 Davis, In re (1895), Table de Dec, 1894—1900 r. Black (1841), 1 Q. B. 900 . r. Boniford (18<;0), 6 H. & N. 245 . r. Ziriimertnan (1870), 67 Pa. 70 . Davies' Policy Trusts, In re, [1892] 1 Ch. 90 . Dawes r. Creyke (18S5), 30 Ch. D. 500 . Dawson r. Batdc of Whitehaven (1877), 6 Ch. D. 218 r. Smart. [1903] A. C. 457 . Dearmer, In re (1.S8.5), 53 L. T. 905 . Debenham r. Mellon (1880), 6 A. C. 24 . De Bury r. De Bury (1903), 36 N. B. R. 57 Deck V. Deck (18(;o"), 2 Sw. & Tr. 90 . Dccourt r. Decourt (18S7). Sirey, 1888, i. 374 . De (;aris r. Blampied (1.S91), Table de Dec., 1889— 1S93, p. 90 De Greuchy r. Wills (1879), 4 (,'. I'. D. 362 De Lambertye r. De Lambertye (1890), Sirey, 1890, i. 314 649, 2, 683, 792, PAGE . 783 244, 915, 9.30 929 866 799 799 125 704 690 222 795 . 867 . 174 . .525 . 373 . 343 . 269 . 658 . 276 . 873 . 649 . 657 636, 640 646, 648 . 658 . 777 . 327 . 940 . 660 332, 717 177, 186 659 638 192 657 657 864, 866 91, 21 116, 831 . 468 . 157 . 312 2, 45, 148, ), 243, 269 . 661 . 97 . 95 . 633 . 128 . 776 320, 572 . 181 . 175 . 789 . 721 702, 725 684, {')S(> . 859 . 702 330, 332 . 736 . 909 . 837 . 572 699, 798 . 831 TABLE OF CASES. XXXI . 40 77<;, 788 De Lane r. Moore, 14 How. 2S'^ De Laubenquo y. De Laubeiique, [I89'.)J P. 42 Deletraz r. r,acheiial (18i)2), ('. of Civ. Just.. Geneva. 8. & P. 1892, iv De Lonay (Baroness) r. Oswald's Bejis. (18B;5), 1 Macph. 1147 Delorme r. Delorme (18'.I7), Sirey, 1898, ii. 05 . Dent r. Dent (18f).-)), 4 Sw. & Tr." lO.J De Nicols r. Curlier, ["1898] 2 Ch. 60 ; [19001 A. C. 21 . 481, 775, 787, r. [1900] 2 Ch. 410 .... De Osko V. Jugla (1908), Table de Dec, 1901—1907, p. !)0 Derby's (Earl of) Case (1577), 4 Leon. 42 Derbyshire, In re (1905), 75 L. J. Ch. 95 . Dery"r. Paradis ('900). R. J. Q. 10 K. B. 227 . De Serre r. Clarke (1874), L. K. 18 E(i. 587 De Stacpoole v. De Stac[)oole (1887), H7 Ch. D. 139 D'Etchegoyen v. D'Etchegoyen (18.88), IS P. D. 132 Dever, Ex parte, [n re Suse'and Sibeth (1887), 18 Q. B. D. 660 Dewar r. Mackinnon (1825), 1 W. & S. 161 .... De Wilton r. Montetiore, [1900] 2 Ch. 481 .... 52.184 Dias r. He Livera (1879), 5 A. C. 123 r. Phillips (1882), 5 S. C. C. 36 . Dick r. Cassie (1738), Mor. Diet. 5857 Dicken r. Hamer (1860), 29 L. J. Ch. 778 . Dicks r. Massie (1695), Mor. Diet. 5821 . Dickson c. Blair (1871), 10 Macph. 41 r. Mill (1707), Mor. Diet. 12,938. Diggens r. Jordan (1865), 3 Macph. 609 ; 5 Macph. 75 Dippers of Tunbridge Wells Case (1769), 2 Wils. 414 Dixon, In re (1887), 35 Ch. D. 4 ■ In re (1889). 42 Ch. D. 306 . r. Saville (1783). 1 Bro. C. C. 326 Doddr. Dodd, [1906] P. 189 .... Doe d. Freestone r. Parrott (1794), 5 T. E. 652 — r. Hutton (1784), 3 Bos. & P. 643 . Doerr r. Forsyth (1894), 50 Ohio St. 726 ; 35 N. E. 1055 Dolphin r. Robins (1859), 2 H. L. C. 390 . Donnelly r. Cooper (1895), R. J. Q. 8 S. C. 488 Dormer v. Williams (1823), 1 Curt. 874 . Dornier r. Dornier (1863), Dalloz, 1863, 11. 49 . Doswell r. Earle (1806), 12 Vcs. 473 Douglas r. Stirling (1613), Mor. Diet. 5861 Douglass r. Douglass (1724). Mor. Diet. 12,910. r. Johnston, Dec. 5th. 1804, Fac. Coll. r. Thomson (1870), 8 Macph. 31 1 Draycott v. Harrison (1886), 17 Q. B. D. 3o4 . Drew r. Nunn (1879), 4 Q. B. D. 661 Drolet r. Lapierre (1889), 1(5 Q. L. R. 1 . Druce r. Denison (1841), 6 Ves. 385 . Drummond r. Drummond (1861). 2 Sw. & Tr. 269 r. Stewart (1740), Mor. Diet. 5858 and Davie's Contract, In re, [1891] 1 Ch. 52 Drybutter v. Bartholomew (1723), 2 P. Wms. 127 Dubois r. Boucher (1883), 3 Dor. Q. B. 241 Due d'Havre /•. Deurbrouq (1885), Sirey, 1835, i. 28 Dues r. Smith (1822), Jacob's Rep. 544 . Dugdale, In re (1888), 38 Ch. D. 176 Duggan V. Duggan, Dec. 29th, 1877, Melbourne, S. C, L. T. 64 Dular Koer r. Dwarkanath Misser (1905), I. L. R. 34 Calc. 971 Dunbar v. Dunbar, [1909] 2 Ch. 629 Duncan v. Cannan (1854), 18 Beav. 128 . v. Dixon (1890), 44 Ch. D. 211 . Dundas r. Dundas (1830), 2 Dow & Clark, 349 Dunfermline r. Dunfermline (1628). Mor. Diet. 15,839 (Earl of) r. Callender (Earl of) (1676), Mor. Diet. 4244 Dunlop r. Grays (1739), Mor. Diet. 5770 ■ c. Greenlee's Trustees (1863), 2 Macph. 1 ; (1865), 2 Macph 658, 873, PAGE . 799 . 866 . 506 . 654 . 837 . 867 788, 785. 789, 794 786, 793 320, 572 . 827 . 682 . 558 703, 792 . 727 . 908 . 721 . 647 260, 270 . 700 . 827 . 644 . 685 627, 628 . 388 . 658 . 659 . 668 . 708 . 700 . 686 . 876 . 700 . 679 . 929 913. 928 . 559 . 222 . 492 . 669 . 643 659, 661 . 658 . 656 334, 707 . 832 . 526 . 676 . 875 . 648 . 704 . 685 . 495 . 584 . 792 . 706 . 909 . 358 . 728 775, 801 . 799 . 795 . (;39 646 625 653 64: XXXll TABLE OF CASES. Dunlop V. Johnston (1867). L. K. 1 Sc. & Div. 116 ; 5 Macph. 22 Dunn r. Dunn (1817), 2 Thill. Kep. 411 . Duparc v. Naude (18.')H), Sirey, 18.53, i. 468 Du Treez r. Cohen (1904). T. S. 157 . Dupuy r. Surprenant (1860), 4 L. C. J. 128 Durant r. Titley (1819), 7 Price, 577 ; 21 R. 11. 773 . Durham v. Durham (1885). 10 P. D. 80 . Durocher r. Degre (1901), R. J. Q. 20 S. C. 456 Dvkes c. Dykes, Feb. 9th, 1811, Fac. Coll. Dysart Peerage Case (1881), 6 A. C. 512 . EaCxER i: Furnivall (1881), 17 Ch. D. 115 . Earl r. Godley (1890), 42 Minn. 361 : 44 N. W. 254 Earle n Kingscote, [1900] 2 Ch. 585 Easter-Ogle (Creditor.s oi) r. Lyon (1724), Mor. Diet. 81 Eastland r. Burchell (1878). 3 Q. B. D. 432 Eddy r. Eddy (1898), R. .J. Q. 7 Q. B. 300 Edgar r. Edgar (1737), Mor. Diet. 4202 . V. Sinclair (1713), Mor. Diet. 4201 . Edmonstone r. Edmonstone (1706), Mor. Diet. 3219 r. ■ (1814), Ferguss. Rep. 168 Edwards v. Carter, [1893] A. C. 360. r. Cheyne (No. 2) (1888), 13 A. C. 384 Elcom, In re. [1S94] 1 Ch. 303 Elibank r. Montolieu (1801), 5 Ves. 737 . Ellam v. Ellam (1889), (Jl L. T. 338 .... Elliot's Creditors r. Elliot (1720), Mor. Diet. 4244 . EUiott f. Collier (1747), 3 Atk. 526 .... r. Elliott (1901), 85 L. T. 648 r. Gurr (1812), 2 Phillimore, 16 . r. Hawley (1904), 76 Pac. 93 (Wash.) . Elwes r. Ehves (1796), 1 Hagg. C. 278 . Embiricos r. Anglo-Austrian Bank, [1904] 2 K. B. 870 Emmett r. Norton (1838), 8 C. & P. 506 . Englar r. Rosenbloom (1909), R. J. 2 ; 35 S. C Enregistrement r. Durand (1901). Sirey, 1903 V. Pellerin (1873),' Sirey, 1873, i. 339 V. Prunet (1894), Sirey, 1896, ii. 53 Erichsen r. Cuvillier (1880), 25 L. C. J. 80 Este v. Smyth (1854), IS I'.eav. 112 . Estevenet r. Estevenet (1890), Dalloz. 1891, ii. 153 . Etherington r. Parrot (1704), 1 Salk. 118 . Evans v. Bignold (18(;9), L. R. 4 Q. B. 622 i: Enregistrement (1874), Cass. D. 1874, i. 258 V. Evans, [1899] P. 195 r. Evans and Elford, [1906] P. 125 r. Stool (188.5), 12 Rettie, 1295 Ewin, In re (1S30). 1 C. i^ ,1. 151 Ewing r. Cullen (1S33), 6 Wils. & Shaw. 56t; . V. Ewing (17!»9), Mor. Diet. 12,997 V. Wheatley (1814), 2 Hagg. C. 175 FAIRLIE r. Fairlie, June 15tli, 1819, Fac. Coll. Farley v. P.onham (1S61), 30 L. J. Ch. 239 Farquhar-doKlon r. Gordon (1790), Mor. Diet. 13,028 Farriiigton r. Farrin<;ton (1S86), II P. D. 84 . Faulds r. Faulds" Trustee (1843), 5 Dunlop. 483 Fauvel r. Renouf (1893), Table de Dec., 1889—1893, p. 90 Favier f. Favier, Cass. S. 1893, i. 457 Fea V. Trail (1718), Mor. Diet. 12,926 Fcjid r. Maxwell (1709), Mor. Diet. 4240 . Fcndall c. (loldsniid (1.S77), 2 P. I). 263 . Fenton r. Livingstone (1859), 3 Macq. 497 FerguBon r. McGeorge (1739), Mor. Diet. 4202, Ferguson's Trustees r. Willis, Nelson Ic Co. (1883), 11 Rettie, 26S Ferlat r. (iojon, llojykins Ch. 478 ..... 428 . ii. 285 PAGE 649, 650, 663 868 490 472 495 336 125 201 656 )1, 192, 193 . 679 . 258 332, 717. 742 . 659 . 331 559. 804 . 647 . 647 . 661 . 906 . 726 651, 653 . 671 . 672 . 864 647, (;48 . 667 . 874 . 221 . 777 . 864 . 774 330, 331 . 304 . 477 . 489 . 499 540. 796 . 799 . 235 330,331 334, 721 . 7(i3 . 872 . 869 . 176 . 792 . 344 . 658 182, 222 . 636 . 686 657 . 726 . 655 . 572 . 763 . 656 645, 647 . 181 267, 260, 261 . 675 344, 630 . 49 TABLE OF CASES. XXXlll Fernando r. Jacobis Appu (1S79), 2 S. ('. C. 20i Ferrers >: Ferrers (1791), 1 Hayii;. 0. 180 . Findlater (Countess of) r. Seafield, Feb. (Sth, 1814, Fac. Coll. Finlay r. Chirney (1887), 20 Q. B. D. 4'J4 Firebrace /•. Firebrace (1878), 4 1'. D. fi8 . First National Bank r. Shaw (1902), 10!) Tenn.237 . Fiscal of Lanarkshire v. JlcLuckie (17y(i), Hume, 204 Fisher r. Web?tcr (1894), B. J. Q. t! S. C. 2.5 Fitzgerald r. Fitzgerald (18(;8), L. U. 2 P. C. 83 Foggo /•. Watson (17(;9), Mor. Diet. (5102 . Foljainbe's Case (KWl), 3 Salk. 138 . Foote r. Hayne (1824), 1 C. & P. 540 Forbes r. Forbes (1817), Ferguss. Rep. 209 Ford r. Stier, [1891)] P. 1 . Forster i: Forster (1790), 1 Hagg. C. 144 . Forsyth r. Forsyth, [1891] P. 363 . Fotheringham r. Fotlieringham (1734), Mor. Diet. 12.929 Foubert r. Turst (1703), f Bio. P. C. 129 . Fourniont r. Fourmont (1885), Sirey, 1880, i P'ovvke V. Draycott (1885), 29 Ch. D. 990 . Frampton r. Stephens (1882), 21 Ch. D. 164 Franco /;. Franco (1799). 4 Yes. 515 . Fraser r. Fraser (l(i77), [Mor. Diet. 12,859 v. Walker (1872), 10 :\Iacph. 843 . r. Woodhouselee, June 19th, 1804, Fac. Coll. Frost t: Knight (1S72). L. B. 7 Ex. Ill . Fulton r. Fulton (1850), 12 Dunlop, 1104 Fyock (Estate of) ( 1890), 135 Pa. 522 G. r. K. (1794), 2 Morley's Digest. 237 . G. r. M. (188.5), 10 App. Cas. 171 . Gabay r. Sarfati (1880). J. 1880, 450 Gairns r. Sandilands (1071), Mor. Diet. 4230 7i<9 . V. Inglis (1(;81). Mor. Diet. 592i . r. Maxwell (l(i78). Mor. Diet. GIU . v. Murray (1883). 11 Shaw, 368 . r. Pve (1815), Fersrus^. Eep. 276 . Gouhur Ali Khan v. Ahmed Khan (1873). 20 Calc. W. l\. 214 Goulard v. Goulard (18:t7), Sirey. 1901. i. 491 . Gould i: Crow (1874). 57 Mo. 200 .... Graham v. Coltrain (1743). Mor. Diet. IS.OK' . r. Graham (187s). 5 Rettie. 1093. r. (1881), 9Kettie, 327 . r. Lord Londonderry (1746). 3 Atk, 393 . V. Eome (1677). Mn: Diet. 12. S87 Granby r. Allen (1697), 1 Kavm. (Ld.) 224 . . Grand Trunk Kv. r. Eastern Townships Bank (1371). 10 L. C Grant *•. Baillie'(1830). 8 Shaw. 606 r. Balvaird (1642), Mor. Diet. 16.483 . Grays r.AVood, kc. (1773). Mor. Diet. 4210 Greatley r. Noble (1818). 3 Mad. 79 .... Greayes v. Greaves (1872), L. E. 2 P. & D. 423 Green r. Green. [1893] T. 89 r. Paterson (1886). 32 Ch, D. 95 . r. State (1877). 58 Ala. 190 .... Greenhill r. N. B. Merc. I. C. [1893] 3 Ch. 474 Greenstreet r. Cum^Tis (1812). 2 Phill. 10 Greenwood, In re, [1892] 2 Ch. 295 .... r. Curtis, 6 Mass. B. 378 . Gregoiy r. Dyer (1841), 15 L. C. J. 223 . Grenier v. Moral (1896), Sirey, 1899, ii. 73 Grierson v. Grierson, Lib. Reg. A. 1780, F. 552 . Griffin c. Griffin, 47 N. Y. 134 Griffiths r. Flemint,', [1909] W. N. 65 ; [1909] 1 K. B. 80, Griffiths' Poliey, In re. [1903] 1 Ch. 739 . Gring v. Lerch (1886), 112 Pa. 244 . Grovert'. Zook, (1906) 87 Pa. 638 .... Guepratte r. Young (1851). 4 De G. k Sm. 217 . Guier r. O'Daniel (1806). 2 Binn. 349, n. . Guignard r. Bonnet (1886). Sirev. 1890. i. 322 . Gullifer v. Gullifer and Foley (1880). 6 Y. L. B. (1. P. & M.) 1 Gurly r. Gurly (1842). 8 CI. & F. 743 Guy V. Dageuais (1896), Pi. J. Q. 9 S. C. 44 Haddock v. Haddock (1906), 25 Sup. Ct. 525 . Hall, In re (1901), 70 N. Y. Supp. 406 V. Hall (1854), 16 Dunlop. 1057 V. (1864), 3 Sw. & Tr. 349 .... V. Maire (1905) Table de Dec.. 1901—1907 V. Wright (1858), K. B. .^c E. 746 Hamel v. Panet (1876). 3 Q. L. B. 173 : L. K. 2 A. C. 121 Hamidoolla r. Faizunnissa (1882), I. L. R. 8 Calc. 327 Hamilton r. Bain (1669). Mor. Diet. 6107. f. Boswell ri 716). Mor. Diet. 3117 . r. Hector (i.s72). L. R. 13 Eq. 511 . r. Wood (1771)). Mor. Diet. 15,8.58 . Hammerslcy r. Baron de Beil (1845). 12 CI. & F. 45 . HaiibuiT '•. HanbllrJ^ [1892] P. 225 .... JIandyside r. Handyside (1699), Mor. Diet. 11,349 . Hanover (hdiabitants of) r. Turner (1817), 4 Mass. R. 22 Hanson r. Keating (1814). 4 Hare, 1 . Harford r. Morris n 776). 2 H.ngg. C. 423 . Hardy /■. R()l.in.sorrn66l). I Kcb. 440 ... Harkness and Allsopp's Contract, In rr>, [1896] 2 Ch. 358 Harper r. Hampton (!8(C.), 1 Hare .John.s. Rep. f!87 Harriinan /•. Hairimai. (P.M'S). 24 T. L. l\. .596 : [1909] P 123 Harri.s r. Hicks, 2 Salk 5ls J. 11 3, 6 PAGE 634 644 644 653 659 921 897 562 929 658 858 864 869 719 720 657 328 485 344 642 647 712 181 222 923 728 142 672 Ui> 691 260, 262 481 5k^ 243 4& 334 721 33.5. 176. 176 2, 775 801 793- 521 131 690 317 896. 941 929 941 775 787 865 320 572 175 559 898 648 634 337 641 72.5 8(!5 652 933 673 ], 244 245 ms 335 C>Wy 793 87r> 25'.> TABLE OF CASES. XXXV Harris r. Morris (1801), 4 Esp. 41 .... Harrison r. Burwell (1671), 2 Veatr. i» . . . r. Cas:e (1798), 1 Itaym. 387 Harris Winberg, In re (LS!)!)),"^ J. 165. Harrop /•. Harrop, [lSi)'J] P. ()1 Hart r. Hart (1881). 18 Ch. D. 670 .... Harteau r. Harteau, Mass. 14 Fiek. 181 . Hartopp r. Hartopp, [1S9'J] P. 65 .... Harvey >: Farnie (1882). S A. C. 43 . V. Farquhar (1870), 8 Macph. !I71. V. (1872), L. Pv. 2 Sc. & Div. 11»2 . and Fuwel r. Chessel's Trustees (17D1), Mor. Diet. 51)80 Harvey's Judicial Factor r. Spittal's Curator ad litem (18!)3). 20 Harvie v. Inglis (1839), 15 Shaw, 965 ... Hastie r. Hastie (1876), 2 Cb. D. 304 Hastings (Lady), In re (18S7). 35 Cb. D. 94 Hattena v. Josepb (1893), J. 915 .... Hawke r. Corri (1820), 2 Hagg. C. 280 Hawkings r. Hawkings (1905). 38 So. 64t) Hay r. Northcote, [1900] 2 Ch. 262 .... Hay don r. Stone, 13 Eh. Isk 91 Hayward r. Hay ward (1858). 1 Sw. & Tr. 84 . Hedgely, In re (18S(;). 34 Ch. D. 379 Heisieid r. Lindsay (1591), Mor. Diet. 6087 Helps V. Clayton (1864). 17 C. B. (N. S.) 553 . Hemingway r. Braithwaite (1889), 61 L. T. 224 Henderson i: Dawson (1895), 22 Kettie, 895 r. Henderson (1730). Mor. Diet. 12,928 . r. (1759), Mor. Diet. 12^919 . v. Tronsdale (1855), 10 A. 548 . Hepburn v. Brown (1814), 2 Dow, 342 Herbert r. Herbert (1819), 2 Hagg. C. 263. Hernando, In re, Hernando r. Sawtell (1884), 27 Ch. D. 284 Herries, &c. v. Brown (1838). 16 Shaw, 948 ' . Hess r. Kunz and Knecht. Entsch. Bandes. v. 258 . Hetherington r. Graham (1829), 6 Bing. 135 Hewett, In re, [1895] 1 Q. B. 328 . "^ . Heydenrych v. Frame. 15 C. T. E. 09 Hej'tber r. Debbers, 2 Eoscoe, 98 ... . Hilbers r. Parkinson (1883). 25 Ch. D. 200 Hilbish r. Hattle (1896), 145 lad. 59 : 44 N. E. 20 . Hill r. Cooper, [1893] 2 Q. B. 85 .... r. Good (1673), A^augh. 302 .... Hilliard v. Hambridge (1648), Aleyn, 36 . Hindley v. Westmeath (1827). 6 B*. & C. 200 : 30 E. E Hitchcock V. Clendiaea (1850), 12 Beav. 534 . H.M. Advocate r. Ballantyne (1859). 3 Irvine. 352 . Hoare r. Niblett, [1891] i Q. B. 781 . . ' . Hodge n Eraser (1740), Mor. Diet. 3119 . Hodges v. Hodges (1796). 1 Esp. 441 ; 4 E. E. 889 . Hodgins v. McNeill (1862), 9 Gr. 305 Hodgson r. Hodgson, [1905] P. 233 . Hodson, In re, [1894] 2 Cii. 421 .... Hoffman v. Hoffman (1869), 58 Barbour. 3(;9 . Hogg r. Gow (1812), May 27th, 1812. Fac. Coll. Hoggan r. Craigie (1839), Mad. & E. 972 . Hogue r. Societe de Construction Montarville (1879). 23 L HoUingtonr. Dean, [1895] \V. N. 35 Holmes r. Eemsen (1820), 4 Johns. Ch. Kep. 4t>0. r. Simmons (1868), L. E. 1 P. & D. 523 Holms, In re, 16 S. C. E. 351 Holtby r. Hodgson (1889), 24 Q. B. D. 103 Homan ;•. Earle (1873), 53 X. Y. 267 . . • . Honamma r. Timaanabhat (1877), I. L. E. 1 Bora. 559 Honeyman r. Campbell (1831). 2 Dow & CI. 265 and Wilson v. Eobertson (1886), 14 Eettie, 163 ettie 332 11 7, 259 174 258 873 33(J 914 871 923, 927 641 859 339 016 860 191 725 714 258 222 127 271 374 865 69!> 649 727 707 339 662 659 781 649 243 764 , 802 659 104 690 711 298 467 725 929 331 710 136 , 260 667 322 675 190 714 634 331 139 865 875 726 934 191 192 559 709 792 222 468 714 176 897 191 653 XXXVl TABLE OF CASES. Honner r. Morton (1828), 3 Kuss. 65 Hood r. Hood, It! Allen, 146 ... . Hood Barrs r. Cathcart, [1894] 2 Q. B. 559 Hoover r. State, 59 Ala. 59 .... Hope r. Dickson (1833), 12 Shaw, 222 r. Hope (1857), 2(5 L. J. Ch. 417 . V. [1892] 2 Ch. 336 .... Hoi)kins r. Hopkins (1807), 3 Mass. Kep. 158 . Horner r. Horner (1799), 1 Hagg. C. 337 . Hornsby r. Lee (1816), 2 Mad. 16 ; 1 W. T. 157 Houghton, In re, 15 8. C. E. 8 . r. Houghton, [1903] P. 150 . Houliston /•. Smyth (182.5). 3 Binsr. 127 . Houpin r. Sterlin (1888). Dalloz, 1881, i. 97 Howard r. Digby (1834), 2 CI. & F. 634 . Humphrey r."Bullen (1737), 1 Atk. 458 . Hunt r. 1)6 Blaquiere (1829), 5 Bing. 550 . r. Hunt, [1897] 2 Q. B. 547 . r. (1878), 72 N. Y. 217 . Hunter r. Hunter, [1905] P. 217 r. Potts (1791), 4 T. R. 182 . Hunter's Trustees r. Campbell (1839), 1 Dunlop, 81 V. Carleton (1865), 3 Sess. Cas., 3rd ser Hurley r. Hurley, [1908] 1 Ir. 393 . Hutchinson r. Enregistrement (1885), 1886, J. 93 Huxtable r. Huxtable (1899), 68 L. J. P. 83 . Hyde r. Hyde and Woodmansee (1866). L. K. 1 P. i: D. 1 Hyslop r. Dickson, Nov. 15th, 1821, Fac. Coll. . Ibrahim Mulla r. Enayetur Euhman (1869), 4 Bencr. Calc. W. E. 460 r. Syed Bibi (1888), I. L. E. 12 Mad. Ilderton v. Ilderton (1793), 2 H. Bl. 145 . Imrie r. Imrie (1891), 19 Eettie, 185 . Inglis r. Lowrv (1676), Mor. Diet. 6131 . T. Eobertson (1786), March 3rd. 1786, Mor. Diet. 1: Inland Revenue r. MuUer, [1901] A. C. 217 . Innell r. Newman (1821), 4 B. & Aid. 419 Innerwick r. Innerwick (1589), Mor. Diet. 329 Insole. In re (18()5), L. R. 1 Eq. 470 .... Irvine (E. Harrison) and Rosa Irvine, In re (1896), 11 E. D (1897), 66 ....... . Irving V. Greenwood (1824), 1 C. & P. 350 Jack v. Jack (1862), 24 Sess. Cas., 2nd ser. 467 Jackson r. Hobhouse (1817), 2 Mer. 483 . V. Jackson (1806), 1 Johns. Rep. 424 . r. McDiarmid (1892), 19 Rettie, 528 . Jaikisondas Gopaldas r. Harkisondas Hullochandas (1876), I. Jakeman's Tru.sts (1883), 23 Ch. D. 344 . .lames r. Fowks (1697), 12 Mod. 101 .lankouska r. Anderson (1791), Mor. Diet., pp. 6457, 15,868 .laiikypersand Agarvvallah, Ex parte (1859), 2 Boulnois, 28 .lanline r. Currie (1830), 8 Shaw, 937 .lauii P.ccbce r. Beparee (186.5), 3 W. R. 93 Jay r. Robinson (1890), 25 Q. B. D. 467 . Jeai)es r. .bniies (1903), 89 L. T. 74 . Jce r. Thtulow (1824), 2 B. & C. 547 ; 26 R. R. 453 .lennings r. Van Wyk, 7 S. C. R. 228 Jervoise '•. Jervoise (1853), 17 Beav. 566 . Jetlcy /•. Hiil (1S,S4), 1 C. k E. 239 . Jodroll r. .lodroll (1H45), 9 Beav. 45 . Johnson, hi re, [1903] 1 (11.821 - r. Clark (1907). 24 T. L. R. 156 . r. Johnson (1820). 1 J. & W. 472 r. [lOOOj I'. 19 68, 66 514 30 L. R 63 ', 689 PAGE 671 914 706, 707, 709 . 142 . 655 . 337 2. 683, 716 . 933 222, 269 7, 671, 672 . 468 . 867 . 331 . 123 . 718 . 667 . 330 . 337 894, 934 . 869 . 792 . 660 . 661 . 676 . 763 . 866 . 258 656 657 (A C.) U C. 61 ; C L. J. L. R. 2 Bom, 12 . 898 . 900 242, 796 . 191 . 651 . 192 . 791 . 336 . 635 . 667 civ. . 468 . 175 . 908 . 70(> . 934 339. 630 17 216 . 667 . 327 . 636 . 144 648, 650 . 899 . 69it . 864 . 336 . 437 . 719 . 332 . 718 . 186 . 333 . 670 . 876 TABLE OF CASES. XXXVll 40 Johnson c. Johnson, [lOOlj P. 108 .... V. Mclntyre (1898), 10 S. C. E. 318 ; 11 C. L. J Johnston r. Cunningham (1667), Mor. Diet. 4199 . Johnstone r. Godet (1818). Ferguss. Eep. 8 r. Marks (1SS7), 19 Q. B. D. 'M) Johnstone-Beattie r. Johnstone (1867), 5 Macph. 340 ; 6 Macph. 388 Johnstone's Trustees r. Johnstone (1896), 23 Kettie, 588 Jolly V. Rees (1864), 15 C. B. (N. S.) 628 . Jones V. Harris (1804), 9 Yes. 486 . r. James (1868), IS L. T. 243 .... Jordon r. Money (1854), 5 H. L. C. 185 Jupp, In re (1883), 89 Ch. D. 148 . . Justice r. Murray (1761), Mor. Diet. 884 . V. Stirling (1668), Mor. Diet. 4228 . Kalyton r. Kalvton (1904), 74 Pac. 491 (Ore.) Kanahi Ram r. Biddya Ram (1878), I. L. R. 1 All. 551 Ivaronchihami v. Angohami, 2 N. L. R. 276 ; 3 C. L. R. '. Kcane, In re (1871), L. R. 12 Eq. 115 . . Kearney r. Gervais (1898), R. J. Q. 3 S. C. 496 Keats i: Keats (1859), 1 Sw. & Tr. 834 Kelley r. Davis, 28 La. Ann. 773 .... Kelly r. Kelly (1894), 161 Mass. Ill Kendall r. Coons (1868), Bush. Kv. 530 78 Ker V. Gibson (1709), Mor. Diet. 6023 Kerr v. Hastie (1671), Mor. Diet. 5922 . r. Kerr (1869), 41 N. Y. 272 . ... V. Moon (1824), 9 Wheaton's Rep. 566 . Kerrison's Trusts, In re (1871), L. R. 12 Eq. 422 Kery Kolitany r. Moneeram Kolita (1873), 13 Beng. L. R. 1 Kettlevvell r. Kettlewell, [1898] P. 138 . Khajah Hidayut Oollah /•. Rai Jan Khanum (1844), 3 Moo. Ind. App. C Kidd r. Harris (1901), 3 0. L. R. 60 . King r. Bezuidenhout and Lynch, 18 E. D. C. 222 . r. King (1823), Ram. 1820—1823 . r. McHendry (19()0), 80 Can. S. C. R. 450 Kingston's (Duchess of) Case (1776), 20 St. Tri. 355 ; Smith L. C. ii. 78 Kinloch r. Kinloch (1678), Mor. Diet. 12.841 . r. Rait (1674), Mor. Diet. 11,345 Kinnier r. Kinnier, 45 N. Y. 585 .... Kinross v. Hunthill (1661), Mor. Diet. 8262 Knowlton r. Knowlton (1895), 155 111. 158 ; 39 N. E. 595 Koch r. Koch [1899]. P. 221 Kraemer r. Kraemer (1879), .52 Cal. 302 Kreung r. Phra Sakorn, Tachin, 68 — 128 . Krickenbeck, In re (1884), 6 S. C. C. 132 Kudomee Dossee r. Joteeram Kolita (1877), 1. L. R. 8 Calc. 805 Kunski r. Kunski (1907), 28 T. L. R. 615 . Kynnaird r. Leslie (1866), L. R. 1 C. P. 889 . L. V. B., [1895] P. 271 - r. M. (1891), Sirey, 1891, i. 811 .... L. A. r. Stewart and Wallace, 2 Br. Sess. Cas. 544 . La Banque d'Hochelager v. Waterus Engine Works Co. (1897). 406 ' . Lacerte r. Boisvert (1891), 17 Q. L, R. 110 Lacey r. Hill (1875), L. R, 19 Eq. 346 . Lacoste v. Fachan (1908), Sirey, 1908, ii. 48 . Lagorgendiere r. Thibaudeau (1871), 2 Q. L. R. 168 . Laing r. Walker (1891), 64 L. T. 527 .. . Lala Gabind Prasad r. Doulat Batti (1870), 6 Beng. L. R La Lyonnaise Cie. v. Revel (1880), Sirey, 1881, i. 49 Lambert r. Bouteloup (1889), Table de Dec, 1889—1893 Lambert's Estate, In re (1888), 39 Ch. D. 626 . Lamontagne r. Lamontagne(1890), M. L. R. 7 S. C. 162 Langham v. Nenney, 3 Yes. 467 .... App p. 6 27 Can. S 85 . 820, 802, 306, 310, 811, PAGK , 866 92 . 647 . 246 . 330 641, 860 . 652 . 330 . 712 . 175 . 725 . 700 . 859 . 646 . 258 . 143 . 97 . 709 . 808 . 866 . 802 . 49 1, 789, 794 . 343 . 654 . 984 . 798 . 725 . 897 . 872 217 139 97 827 531 224 661 652 909 646 930 865 790 903 421 896 337 255 186 835 256 29c C. R. 689, 485 541 691 549 509 719 853 490 572 688 812 667 XXXVIll TABLE OF CASES. Languedoc c. Laviolette (1858), 8 L. C. E. 257 Lanigan v. Neely (1907), 89 Pa. ill . Lansdowne r. Lansdowne (1820), 2 Bligb, CO Lapanne v. Lapanne (18tU), Sirev, 1865, ii. 4 Laporte v. Cosstick (1874), 23 W. H. 131 . V. Cotel (1897), Siiey, 1897, i. 352 Lapsley r. Grierson (1848), 1 H. L. C. 498 Lashley r. Hog (1804), 4 Faton, 581 Lasnier r. Fillatreau (1902), Sirey, 1902, i, 485 Lassence r. Tieruey (1849), 1 Mac. & G. 551 Lautour r. Teesdale (1816), 8 Taunt. 830 . Lavarello r. Feirandez (1894), J. 574 Laviole r. Martin, 2 L. C. J. 61 Law r. Smith (1904), 59 N. J. (Ch.) 327 . Lawford v. Davies (1878), 4 P. D. 61 Lawless r. Chamberlain (1889), 18 O. R. 296 Laws V. Tod (1697), Morr. Diet. 4236 Lawson r. Gihnour (1709). Mor. Diet. 3114 Leaman v. Thompson (19u6), 86 Pa. 926 . Lean v. Schutz (1778), 2 AVm. Bl. 1195 . Learmoiith v. Miller (1875), L. R. 2 Sc. & Div. 438 . Le Boutillier, Ex parte (1900), Table de Dec., 1894—1900, p. Le Breton r. Nouchet (1813), 3 Mart. 60 . Lebruu r. Renusson, cited Merlin, tit. Communaute, s. 3 . Ledanseur r. Mougeot (1889), Sirey, 1890, ii. 1 Lee V. Abdy (1886), 17 Q. B. D. 309 — r. Doxlon, 5 N. L. R. 270 — r. Muggridge (1812), 1 V.& B. 118 . . Leyrand r. Meunier (1851), Dalloz, 1852, i. 25 . Le Gros r. Le Gros (1892), Table de Dec, 1889—1893. p. 6:5 Le Mesurier v. Le Mesurier (1894), 3 C. L. R. 45 V. [1895] A. C. 517 ; 1 N. L. R. 16U Lempriere v. Vibert (1862), 10 W. R. 870 . Leng, Inre, [1895] 1 Ch.652 Leslie r. Wallace (1708), Mor. Diet. 5853. Le Sueur r. Le Sueur (1876), 1 P. D. 139 Letts, In re (1881), 7 L. R. Ir. 132 Leven r. INIoiitgomery (1683), Mor. Diet. 3217 . Levett r. Levett, Dec. 21st, 1816, Ferguss. Rep. 6S . Levi and Wife, In re, 6 C. T. R. 227 ; C. L. J. xiii. (1869), 2( L'Heureux r. Boivin (1881), 7 Q. L. R. 220 .. . Lichtonberger /■. Graham (1875), 53 Ind. 288 . Liddell r. Easton's Trustees (1907), Sess. Gas. 154 . I>ightbody v. West (1902), 87 L. T. 138 . Like /•. Beresford (1797), 3 Ves. 506 Lindo r. Belisario (1795), 1 Hagg. C. 216 . Iviiidoris r. Sicwart (1715), Mor. Diet. 6126 r.inke r. Van Aerde (1894), 10 T. L. R. 426 Lisboinie r. Daubize (1873), Sirey. 1874, ii. 193 Lloyd r. Lloyd (1901). 84 L. T. 728 r. Pctitjean (1839). 2 Curt. 251 .... /•. Williams (1816), 1 Mad. 462 ... . Lock r. Lake (1757), 2 Lee, 420 Locdolff and Smuts r. Robertson (1863), 4 Searlo, 146 Logan /•. Galbraith (1665), Mor. Diet. 15,842 . Lolley's Case (1812), Russ. &; Ryan, 273 ; 2 CI. & F. .567, n. Loudon and Provincial Bank v. Bogle (1878), 7 Ch. D. 773 r.ondon Street Tram. Co. v. London 0. C, [1898] A. C. 375 Long r. Hess, 154 111. 482 Longworth v. Yelverton (1867), L. R. 1 Sc. & Div. 220 . Lord r. Hall (1849), 8 C. B. 627 V. Lord, [1900] P. 297 Loustalan r. Loustalan (1902), .1. 380 Lovedcn r. Lovcden (1810), 2 Hagg. C. 2 . LovcU V. .Newton (1878), 4 C. P. D. 7 77 PAGE 775, 783 . 177 . 800 . 489 . 703 . 314 134, 193 ;2, 783, 786, 802 341 725 48, 186, 214. 271 . 370 . 379 . 790 190, 223 129, 879 645, 662 . 634 . 177 . 327 650, 663 320, 572 , 781, 789 . 797 . 835 . 373 92, 93 . 671 . 489 319, 572 . 82(5 369, 776, 826, 827, 908 575 715 644 78, 909, 913 . 675 643, 644 . 906 . 468 . 526 . 790 . 176 263 673 ■;4, 219, 269 649 369 311 870 273 673 136 98 639 930 . ' 699 . 177 . 802 191. 192 . 329 . 873 . 789 . S(i4 . 702 i: .1. 181 91." TABLE OF CASES. XXXIX Low /■. Low (1891). 19 Soss. Cas., 4th ser. Uo . Lowe V. Fox (1885), 15 q. R. D. G(i7 r. Lowe, [1899] F. 204 Lowrie /■. :Mercer (1840), 2 Duiilop, 900 . Lush's Trusts. In re (1881), 7 L. K. Ir. 132 Lynde r. Lyiule (1900), 102 N. Y. 412 ; 5(j N. E. 081 Lynes, lu re, [1893] 2 Q. B. 113 M. V. B. (1892), Sirey, 1892, ii. 197 .... M. & M. (1900), Sh-e'y, 1901. i. 80 .... Macan /•. Jlacan (1900), 70 L. J. K. B. 90 McAlister r. Raw & Co., 4), Calc. \V. R Wiiir r. Stirling: (IGti:?), Mor. Diet. G107 . Mulchand Ruber r. Bhudhia (1897), I. L. R. 22 Bom. Munday r. Howe (Earl) (1798), 4 Ero. Ch. Cas. 224 . Munro v. Munro, Feb. IHth, 1810, Fac. Coll. . Murphy r. Murphv (1902), T. S. 179 Murray v. Blair (1*739), 1 Pat. 251 . V. Elibank (Lord) (1804), 1 \V. T. G21 . c. Graham (1724), Mor. Diet. ti079 v. Murray (1(;71). Mor. Diet. 5(;89 Murray Canal, In re (1884), G O. R. 685 . Murravs r. Murrays (1677), Mor. Diet. 12.944 . Muspratt-Williams, In re (1901), 84 L. T. 191 . N. r. L. (1892), Sirey, 1892, ii. 196 . — v. N. (1808), Sirey, An. 18U8. ii. 385 Nagama r. Virabhadia (1894), I. L. R. 17 Mad. 392 . Nanabhai Ganpatrav Dhairyavan r. Janardhan Vasudev (1886), Bom. 118 Napier v. Irvine (1697). Mor. Diet. 12,898 r. Napier (1801), Hume, 8G7 Nash r. Nash (1790), Hagg. C. 140 Natal Bank v. Bond, 58 L. J. P. C. 97 . r. H. T. Rood, T. S. 1909 : [1910] A. C. 570 . National Bank of Scotland, Ltd. r. Cowan (1893), 21 Rettie, 4 Nathubhai Bhailal /•. Javher Raiji (1876), I. L. R. 1 Bom. 123 Naude r. Naude's Trustees (1869), Bach. 166 . Needham v. Bremner (18G6), L. R. 1 C. P. 588 Neilson t: Arthur (1(572), Mor. Diet. 5984. c. Murray (1732), 1 Pat. 65 Neung V. Hok Lee, C. C. 128 Newsome r. Newsonie (1871). L. R. 2 P. & D. 306 . Newton r. Newton (1885), 11 P. D. 11 .... Niboyet r. Niboyet (1878), 4 P. D. 1 Nichols and S. Co. r. Marshall (1899), 108 la. 518 . Nicholson i: Drury Building Estate Co. (1877), 7 Ch. D. 48 i: Squire (1809), 16 Yes. 259 (a) Nixon r. Borthwick, Feb. 18th, 1806, Fac. Coll. Noel V. Noel (1885), 10 P. D. 179 Norman r. Yillars (1877). 2 Ex. D. 359 .... Normandin r. Arnois (1883). 8 Dor. Q. B. 329 . Norris c. Condon (1888), 14 Q. L. R. 184 . Northern Banking Co. r. McMackin, [1909] 1 Ir. R. 874 . Northey V. Northey (1740), 2 Atk. 77 .... Norton r. Seton (1819), 3 Phillm. 147 .... Nourse r. Stevn, wife of Griffiths, 1 Men. 28 . Nunneley r. Nunneley (1890), 15 P. D. 186 Oak r. Lumsden, 3 S. C. R. 144 O'Connor r. Kennedy (1887), 15 0. R. 20 . O'Keate r. Calthorp (1739), cited 8 Yes. 177 . Ogdenv. Ogden, [1908] P. 46 Ogilvy r. Ogilvy, Dec. Kith, 1817, Fae. Coll. . OXrorman. In re. Ex parte Bale, [1899] 2 Q. B. 62 . Ormef. Diffors (1833), 12 Shaw, 149 .... Otway c. Otway (1888), 13 P. D. 12 Orpen et Uxor., In re, 2 Searle, 274 Osborn r. Young (1696), Mor. Diet. 5785 .... Oswell V. Probert (1795), 2 Yes. 680 Packer r. ^Yyndham (1715). Pre. Ch. 412 Packwood's Succession (1845), 9 Robinson (La.) 438 Padam Kumari r. Suraj Kumari (1906), I. L. R. 28 All. 458 41, 2 I. L. R. 12 PAGE . 125 . 93 93, 471 . 900 . 648 . 144 . 725 . 658 . 825 . 645 72, 673. 674 338 648 139 659 800 157 116 897 . 144 657 . 246 . 868 . 298 . 438 . 632 756 . 437 . 224 . 339 . 645 75 . 867 . 987 . 908 . 376 . 667 . 180 . 644 . 726 . 870 558, 559 . 307 . 690 . 719 . 135 . 478 . 929 . 298 . 129 . 671 ")0. 269, 360 . 656 . 873 . 340 . 875 . 467 642, 644 670, 672 667, 670 777 . 148 xlii TABLE OF CASES. Paigi V. Shcouarain (18S5), I. L. R. 8 All. 81 Paine r. Paine, [1903] P. 2(5:5 . Paine's Case (1587), 8 Co. 34 a . Palmer r. Ponar, Jan. 2.'ith. 1810, Fac. Coll. r. Palmer (18(50), 2 8vv.&Tr. 61 . r. Sinclair, .June 27th, 1811, Fac. Coll. V. Trevor (1(584), 1 Vern. 2(51 P. and M. Louw r. The Liquidator of Hugo, Theron and JIalher Court S. H. P I'ape V. Papc (1888), 20 Q. B. D. 7(5 . Paciuiu. Ltd. r. Beauclerk, [1906] A. C. 148 Parent r. Shearer (1879), 23 L. C. J. 42 . I'arker r. Carter (1844). 4 Hare, 400 Parker's PoUcies, In re, r 11)06] 1 Ch. .526 Parton 7-. Hervey (18.54)," 1 Gray (Mass.) 121 Pascaud r. Geiidreau (1857), Sirey. 1857, ii. 534 Paterson r. Balfour (1780), Mor. Diet. 4212 r. Ord (1781), Mor. Diet. 3121 . r. Ptussell (1850), 7 Bell, App. 363 Paton r. Lewthwaite (or Pat on), [1903] W. N. 44 Paul r. Paul (1882), 20 Ch. D. 742 . Pawling r. P.ird's Exors. (181(5), 13 Johns. Picp. 192 Pawson r. Brown (1879), 13 Ch. D. 202 . Peacoek r. Monk (1751), 2 Yes. Sen. 190 . r. Peacock (1858), 1 Sw. cV: Tr. 183 Pearce r. Merriman, [1904] 1 K. B. 80 . Peillon V. Brooking (1858), 25 Beav. 218 . Peloquin r. Cardinal (1893), E. J. Q. 3 Q. B. 1 Peltou V. Harrison, [1891] 2 Q. B. 421 Peniberton r. Hughes, [1899] 1 Ch. 781 . PeuDYCook /•. Grinton (17.52). Mor. Diet. 12.67 People r. Baker (1878), 76 N.Y. 78 . Perrier r. Palin (1897), P. J. Q. 14 S. C. 322 Perriu r. Synd. \'ezien (1897), Sirey, 1900, i. 521 Perry r. Meddowcroft (184(5), 10 Beav. 122 I'ertreis r. Tondear (1790). 1 Hagg. C. 136 Petit-.Jean r. Prevost (1870). Sirey, 1870, i. 299 Phillimore r. Machon (1876), 1 P. D. 481 Phillips r. Barnet (1876), 1 Q. B. D. 436 . r. Hunter (1795), 2 H. Bl. 402 . Philliskirk r. Phickwell (1814). 2 M. & S. 393 Piche r. Morse (1898), R. T. 11. 15 S. C.30(5 Pieters, In re. 9 C. T. E. 4(58 Pike V. Cave (1893), 62 L. J. Ch. 937 r. Fitzgibbon (1881), 17 Ch. D. 454 . Pillans i: Porter's Exors., 5 S. C. R. 420 . Pipon r. Pipon (1743), Ambl. 25 Pitfirran (Lady) r. Wood (1709), Mor. Diet. ." Pitt r. Hunt (1(581), 1 Vern. 18 - V. Pitt (18(51). 4 Macq. 627 . - V. Thompson (180(J), 1 East, 1(5 . Pittam V. Foster, 1 B. & C. 248 . Pivert r. Layet ct Turc (1897), Sirey, 1898, i. I'latt's Appeal, 80 Pa. St. 501 . Plub r. Somboon, Dika, 773 Pointraud r. Daunizeau (1902), Sirey, 1903, i. 312 i'ollard and Pollard r. Registrar of Deeds (1903), T. S. 3-; I'ol^'dore '•. Prince, 1 Ware, 413 Porlerfield v. Gray (17(50), Mor. Diet. 12,874 Portsmouth r. Porlsmouth (1828), 1 Hagg. Ecel. 35 Potieter, In re, C. L. J. iv. 286 . Potter r. Brown (1804), 5 Ea.st, 124 . r. Deboos (181.5), 1 Stark. N. P. 82 Pratt r. Bunnell, 21 O. R. 1 Prescott r. Preseott, [1906] 1 Ir, R. 185 . Prince of Capua's Ca.se (1836) . 99 400 bc(P m. !)2 PAGE 853 867 681 346 867 654 328 High 469 866 714 378 679 721 49 493 (547 634 864 866 729 934 728 718 8(57 329 373 310 710 3. 938. 939 191 941 .548 563 224 186,271 534 223 716 792 (567 314 468 334 707 473 792 628 672 908 327 327 309 914 760 566 468 3(59 65(5 101 4(58 792 175 738 721 182 TABLE OF CASES. xliii Friugle r. Hodgson (1798), :? Vcs. (Ii;) Pritchett /•. Cross (1792), 2 H. Bl. 17 rroctor v. Proctor (1819), 2 Hagg. C. 292 . Prole V. Soady (1868), L. R. 3 Oh. 220 Pruiiier r. Menard (1896), 3 Pw de J. 11(3 . Pryor r. Hill (1782), i Bro. C. C. 139 . V. Pryor, [1900] P. 157 Purchase and Wife, Ex parte, 3 S. C. R. 8i ; C. L. J. (1 Purdew v. Jackson (182-1), 1 Russ. 1 ... Purves' Trustees r. Purves (1895). 22 Rettie, 513 Pusi r. Mahadeo Prasad (1880), 3 All. 122 QUANE V. Quaue (1852), 8 Moo. P. C. 63 . Queade's Trusts, In re (18S5), 5-1 L. J. Ch. 786 Queen v. Abraham Mentoor, 11 E. D. C. 125 . R. t?. Allen (1872). 12 Cox. C. C. 193 — V. Baines (1900), 19 Cox. C. C. 524 — r. Bell (1857). 15 U. C. R. 287 . — r. Birmingham (Inhabitants of) (1828), 8 B. & C. 29 230 . ^ — V. Brampton (Inhabitants of) (1808), 10 East, 282 — V. Brighton (1861), 1 B. & S. -147 . — r. Chadwick (1847), 11 Q. B. 205 ; 2 Cox. C. C. 381 — V. Chapman (1849), 1 Den. 432 . — V. Cohen (1868), 11 Co.x, C. C. 99 ... — V. Conolly (1829), 2 Lew. 229 .... — r. Cruse (1838), 8 C. ct P. 541 .... — V. Dykes (1885), 15 Cox, C. C. 771 .. . — V. Great Faringdon (1796), 6 T. R. 679 — V. Griffin (1877), 3 V. L. R. (L.) 278 . — v. Jackson, [1891] 1 Q. B. 071 .... — r. Jacobs (1820), 1 Moody, 140 . — V. James (1850), 3 Car. & K. 167 .... — V. John (1875), 13 Cox, C. C. 100 ... — V. Jones (1842), C. & M. 014 .... — r. K. (1875), 5 Buch. 98 — V. Lcresche, [1891] 2 Q. B. 418 .... — V. Magee (1893), L. R. I. 32 Q. B. & Ex. 87 — V. Manning (1849), 2 Car. & K. 903 . — V. Millis (1844), 10 CI. & F. 534 . . .48, 50, — V. Nem-e-quis-a-Ka (1889), 1 :N. W. T. 21 . — V. Price (1837), 8 C. & P. 20 — r. Rea (1872), L. R. 1 C. C. R. 365 — V. Roblin (1802), 21 U. C. R. 352 — v. Russell (Earl), [1901] A. C. 446 — V. Seeker (1857), 14 U. C. R. 604 ... — V. Tolson (1889), 23 Q. B. D. 168 — r. Torpev (1871), 12 Cox, C. C. 45 — v. Wroxton (1833), 4 B. & Ad. 640 ; 38 R. R. 341 Rae f. Neilson (1875), 2 Rettie, 676 — V. Rae, Jan. 23rd, 1810, Fac. Coll. Ramasami Padeiyatchi v. A^'irasami Padeiyatchi (1807), : Ramsay r. Margrett, [1894] 2 Q. B. 18 . . . r. Ramsay, July 11th, 1833, Fac. Coll. Ranking's Settlement. In re (1808), L. R. Eq. 001. Ransac r. Faugeras (1900), Sirey, 1901, i. 65 . Raphael, In re (1900), 117 Louis. 967 Ratcliff V. Ratcliff (1859), 29 L. J. (P. . lleid r. Teakle (1853). 13 C. B. 627 . Eemmington r. Bioadwood (1902), 18 T. L. E. 27( Keucaux v. Teakle (185.3), 8 Ex. 680 llennie v. Ritchie (1845), 4 Bell, App. 221 Rennington >: Cole (1617), Nov, 29 Rej-nard r. Spcnce (1841), 4 Bear. 103 Reynolds r. U.S., 98 U. S. 145 . Rhode Island Locomotive Works r. South Eastern 86 Richards r. Chambers (1805), 10 Ves. 580 r. Goold (1827), 1 Molloy, 22 . r. Richards (1831). 2 B. i: Ad. 447 . Richardson r. Hall (1819). 1 Brod. A: Bing. 50 . r. Michie and Marshall (1685), Mor, Diet. 6147 Eicketts r. Ricketts(1891). 64 L. T. 263 . Riddell r. Dalton (1781), Mor. Diet. 637 . r. Guinnell (1841), 1 Q. B. 682 . Ridgway /•. Ridgway (1881), 29 W. R. 612 Ridlev. In re. Buckton r. Play (1S79). 11 Ch. D. 64 Ridoiit r. Plymouth (Earl of) (1740), 2 Atk. 104 Riobe r. Riobe (1890), Sirey, 1891, ii. 71 . Robb r. Robb (1891), 20 O. R. 591 . Roberton v. Moderator of General Assembly (1833). 11 Shaw Roberts r. Pierson (1753), 2 Wils. 3 . Robertson, In re. 25 Gr. 276 .... r. Norris (1848), 11 Q. B. 916 . Robinson, In re (1884). 27 Ch. D. 160 r. Bland (1760). 2 Burr. 1077 . r. Robinson, [1903] P. 1.55 Roche r. Roche, [1905] P. 142 . Rogers, Ex parte (1884), 26 Ch. D. 31 V. Rogers (1848), 3 L. C. J. 64 r. Scott (1867), 5 Macph. 1078 . Rollo r. Shaw (1832), 11 Shaw, 132 . Roma Nath r. Rajonimoni Dasi (1890), I. L. R. 17 Calc. 679 Romanes c. Riddell. .V:c. (186.5), 3 Macph. 348 . Rood i: Bank of Natal. [1910] A. C. 570 : 26 T. L. R. 6 Rose r. Bowler (1789), 1 H. Bl. 108 . r. Clark (1841), 8 Page Ch. 574 . Ross r. Aglianby, .Ian. 20th. 1797, Fac. Coll. : Mor. Diet. 463 r. Macleod (1861), 23 Dunlop, 978 . Rossborough r. Rossborough (1886), 16 Rettie, 175 Rouillat r. Rouillat (1866), Sirey, 1867, ii. 6 . Row r. Dawson (1749). 1 W. T. 93—151, nn. . Rowe r. Jackson (1783), 2 Dick. 604 Rowell r. Rowell, [1900] 1 Q. B. 9 . Rowland r. Rowland, April 7th, 1817, Ferguss. 226 Roy and Taylor r. Sturrock (1900), 21 N. L. R. 11 Ruding r. Smith (1821), 2 Hagg. C. 371 . Rumsev r. George (1813), 1 M. & S. 176 . Ruperti r. Ruperti's Trustees (1885), 4 S. C. R. Russell r. Cowlos (1860), 15 Gray. 582 r. Russell (1874), 2 Rettie, 94 r. [1895] P. 315; [1897] A. C, Russell's (Earl) Case, [1901] A. C. 446 . Ryall r. Rowles (1750), 1 W. T. 93—151, nn. . Ryan r. Ryan (1816), 2 Phill. 332 . S. r. B. (1892), 1. L. R. 16 Pom. 639 St. Ann's Mutual Building Society r. Watson (1882), M. L. 1 Salisbury (Earl of) r. Newton (1759), 1 Eden, 370 . Sanders')-. Dunlop ri72S), Mor. Diet. 6108 Sang r. LuaiiL,' in, hika, 351 22 39.- 31 L 297 4Q 914 330 330 330 338 221 687 259 ' C. J. 485 671 793 714 327 653 708 655 689 367 709 '. 719 720 563 179 632 328 738 677 706 '. 244 917 866 869 677 '. 481 783 635 647 897 661 438 668 49 636 191 637 492 670 673 337 906 419 .' 187, 263, 264 272 668 93, 471 ,472 176 344 . SU, 874 . 133, 258 670 242 136 S28 . 459. .500 670 648 760 TABLE OF CASES. xlv Sant V. Sant (1874), L. R. 5 P. C. 542 Santo Teodoro r. Santo Teodoro (187(5), 5 P, D. 7'.l Saul r. His Creditors, 7 Mart. I.ouis. 5t)9 . Savary c. Savary (18i)9), 79 L. T. G07 Sawyer r. Shute (1792), 1 Anst. 05 . Scawen r. Blunt (1802). 7 Ves. 204 . Schoombie v. Schoombie's Trustees. 5 S. C. H. 189 ; C. L. J. iv. 28 Scott r. Att.-Gen. (I88(j), 11 P. D. 128 . r. Cranston (177(!), Jlor. Diet. 6108 . r. Kerr (171S), Mor. Diet. .-.91(5 v. Morley (1887), 20 Q. B. D. 128 .... 329, 334, 71 i: Sebright (18S6), 12 P. D. 21 . r. Spashett (1851), 3 Mac. & G. 599 . Scrimshire r. Scrimshire (1752), 2 Hagg. C. 395 .... 241 Scriven r. Tapley (1765), Arabl. 509 . Scully c. Scully (1890), 4 Kyslie, 602 Seaborne v. Biackstone (1663), Freem. Ch. 17S Seaton r. Benedict (1828), 5 Bing. 28 v. Seaton (1888), 13 A. C. 61 . Sedgwick v. Thomas (1883), 48 L. T. 100 . Selby T. Selby (190.5), 61 A. 142 .. . Selkrig v. Davies (1814). 2 Rose's Bank. Cases, 97 Semple r. Crawford (1624). Mor. Diet. 15,837, 15,85! Seroka v. Kattenburg (1886), 17 Q. B. D. 177 . Seyton, In re (1887)^34 Ch. D. 511 . Sforza /•. Sandilands (1833) 5 Jur. 398 Shakespear, In re (1885), 30 Ch. D. 169 . Shaw, In re (1906), 94 L. T. 93 .... c. Att.-Gen. (1870), L. R. 2 P. & D. 154 . V. Gould (1868), L. R. 3 E. & I. App. 84 . Shearn, In re (1889), 4 N. W. T. 83 . Sheddan r. Gibson, ilay 15th, 1802, Fac. Coll. . Shepherd, In re (1879), 10 Ch. D. 573 Sherrington r. Yates (1844), 12 M. &: W. 855 . Sherwood r. Ray (1837), 1 Moo. P. C. C. 353 . Short and Birnie c. Murray (1724), Mor. Diet. 6124 Shnrmur v. Sedgwick (1883), 24 Ch. D. 597 Shute r. Sargent (1892), 67 N. H. 305 ; 30 Atl. 282 Sibeth, Ex parte (1885), 14 Q. P.. D. 417 . Sickert r. Sickert. [1899] P. 278 . Sill r. Worswick (1791), 1 H. Bl. 005 Sillas-le-Normand r. Bisson (1844), Sirey, 1845, i. i Silva r. Dissanayake (1892), 2 C. L. R. 123 r. Silva (1*905), 8 N. L. R. 280 . Sim V. Myles (1829), 8 Shaw, 89 . . . Simonin r. Mallac (I860), 2 Sw. & Tr. 07 . Simpson r. McLellan (1082), Mor. Diet. 5852 . Sitaram r. Mussamut Aheeree Heerahnee (1873), 11 Beng. L. R. 12 Sivwright r. Dallas, Jan. 27th, 1824, Fac. Coll. Slater r. Parker (1908), 24 T. L. R. 621 . Slous r. Manger (1904), Table de Dec. 1901—1907, p. i; Smeaton r. Smeaton (1900), 2 Fiaser. 837 Smith i: Adams (1854). 5 De G. M. & G. 712 r. Grieson, June 27th, 1755, Mor. Diet. 12,391 r. Ilbery (1842), 10 M. & W. 1 ; 02 R. R. 510 r. Lucas (1881), 18 Ch. D. 531 /•. Matthews (1860), 3 De G. F. & J. 139 /•. Maxwell (1824), Ry. & Moo. 80 . r. Muire (160.S), Mor. Diet. 9858 r. Plomer (1812). 15 East, 6(>7 r. Smith, March 11th, 1812, Fac. Coll. r. [1898] P. 29 . V. Whitlock (188<;), 55 L. J. (Q. B.) 280 Smith-Cunninghame c. Anstruther's Trustees (1869), 7 Macph. 089 Sm. Rajlukhy'Dabee r. Bhootnatu Mookerjee (1900), 4 Calc. W. N Suelsonc. Corbet (1740), 3 Atk. 369 . .'.... 46 3, 2 075, 45,2 488 PAGE . 889 909, 913 777, 789 . 871 792 666 . 468 257, 928 . 648 . 654 2, 713, 717 . 125 . 674 243, 245 . 673 . 890 . 328 . 331 . 720 . 709 . 127 . 792 . 641 . 717 . 721 . 373 . 707 . 713 914, 923 862, 877, 923 179 654 711 600 98, 130, 223 . 649 . 683 . 369 701. 801 . 865 . 792 . 225 . 421 . 828 . 192 0, 263. 269 . 642 . 353 . 661 . 330 . 572 . 858 . 680 . 191 . 332 . 720 . 673 . 188 655 . 327 . 654 . 872 . 707 . 645 . 354 . 719 xlvi TABLE OF CASES. Societe Generale v. Lasserre (1885), Dalloz, 1886, i., 146 . r. Quenard et Jacquemart (1901), Sirev, 1908, ii. 1 Softlaw V. Welch, [1899] 2 Q. B. 419 . . . ' Soilleux r. Soilleux (1802), 1 Hagg. C. 873 Solomon and Solomon r. Hanna (1903), T. 8. 460 Somerset (Duke of), In re (1887), 34 Cli. D. 465 . Sommerville r. Halcro (1626), Mor. 12,635 Sooda Ram Doss v. Joogul Kishore Goopto (1875), 24 Calc. W. E. 2 Sopwith r. Sopwith (1861), 80 L. J. (P. M. & A.) 131 Sorolah Dossee r. Blioobun Mohun Neoghy (1888), I. L. K. 15 Calc Sottomaj'or v. De Barros (1877), 3 P. D. 1 Soubrenie r. Lavieille (1896), Sirey, 1900, i. 511 Sparrow r. Carriithers, cited 2 AVm. Bl. 1195 Spiers r. Dunlop (1778), Mor. Diet. 13,026 V. Hunt, [1902] 1 K. B. 720 . Spyer r. Hyatt (18.5.5), 20 Beav. 621 . Squib V. Wyn (1751), 1 P. Wms. 37s .... Squire r. Scjuire, [1905] P. 4 . S.S.C. Society r. Officer (1893), 20 Kettie, 1106 Stamper r. Barker (1820), 5 Mad. 157 Standard Property Investment Co. r. Cowe, k.Q. (1877), 4 Kettie, 59 Stavert r. Stavurt (1882), 9 Sess. Cas., 4th ser. 519 . Steed r. Cragh (1723), 9 Mod. 43 .... Steele. In re, 10 S. C. R. 206 r. Braddell (1838), Milw. Eccl. Rep. 1 . Stein r. Stein (1826). 5 Shaw, 101 . Steinmetz v. Halthin (1820), 1 G. k J. 67 . Stephenson r. Handy (1778). 8 Wils. 388 . Steuart r. Robertson (1875), L. R. 2 Sc. & Div. 494 . Steven r. Dunlop. Feb. 1st. 1809, Fac. Coll. Stevens r. Fisk (1883), 5 L. X. 79 . v. Trevor-Garrick, [1893] 2 Ch. 307 . Stevenson r. Gray, 17 B. Monr. 193 . Stewart r. Anderson (1632). Mor. Diet. 3112 V. ^litchell (1769), Mor. Diet. 6100 ?•. Stewart, March 2nd. 1815, Fac. Coll. Steyn r. Trustee of Stevn (1874). 4 Buch. 16 . Stirling r. Crawfurd (1716). Mor. Diet. 6111 . Stonor, In re (1888), 24 Ch. D. 195 .... Strachan 'iJ. Strachan (1754), Mor. Diet. 996 Strathmore r. Bowes (1789), 1 W. T. 613 . Strathmore"s (Countess of) Case (1750), 6 Paton, 684 Stride v. Wepener (1903). T. H. 388 ; S. A. L. J. xxi. 1904, 61 Sturgis r. Sturgis (1908). 93 Pa. 696 . SuUivan r. Sullivan (1818). 2 Hagg. C. 289 Surjyanioni Dasi r. Kali Kanta Das (1900). I. L. R. 28 Calc. 44 Surman v. Fitzgerald, [1903] 1 Ch. 933 ; [1904] 1 Ch. 574 r.Whaiton, [1891] 1 Q. B. 491 . Sussex Peerage Case (1844). 11 CI. & F. 85 : 8 Jur. 798 Sweet r. Sweet, [1895] 1 Q. B. 12 . Swift r. Swift (18(;5). 84 L. J. (Ch.) 209 . r. [1891] P. 129 Swintoiw. Kails (1676). Mor. 12,687 Svm"s Case (1584). Cro. Eliz. 83 .... Symonds r. Hallett (1883). 24 Cli. D. 346 . sVnious r. Symons, [1897] P. 203 .... sVnge r. Svnge, [1894] 1 Q. P.. 466 . : r. [19(t0| P. 180 ; [1901] P. 317 . Szapira Case (19(12). J. 879 Talec c. Darga (19(»1), Dec. S. C. 1904 . Tannaz r. Canton dc Vaud, Entsch. Bund. ii. 29 Tan.send /•. Crow (1862), 2 K. 74 .... Tasker r. Taskcr, [1895] P. 1 Taylor r. Meads (1865). 81 L. J. (Ch.) 208 et Uxor., Kx parte, 12 S C. R. 348 74 74 29, 1 306 250, 33c 25c 88, 2 62 8, 71 PAGE 805 552 834 864 93 705 192 756 224 756 263 477 327 658 175 690 667 872 858 670 340, 651 908 676 468 3, 269 661 678 328 198 648, 651 879 724 260 638 64S 658 472 65 Tennent r. Welch (1888), 87 C'h. U. &22 . Tessier dit Laplantc v. Guay (l;)03), 1!. J. Q. 23 S. C. 77^ Thapita Peter i: Thapita Lakshmi (18i»4), I. L. E. 17 Ma^ Thellaud c. Thelland (1909), S. A. L. J. xxvi. 42 ■ Thellussoii r. Woodford (1799). 4 Ves. 227 Thibaudeau v. Uesilets (1901), R. J. Q. 10 K. I!. ISH Thomas, In re (1886), 3-1 Ch. D. 166 . c. Aiicou'au-ier (1893), Sirey. 1893, i. 180 Thomi)Son. Ex parte, [1884] W. N. 28 Thorns r. Kincr (18!).".), 9.5 Teiin. 60 ; 31 S. W. 983 Thomson c. Home (1827). 6 Shaw, 204 . • c. McCuUoch (1778). Mor. Diet. 434 . r. Smith (1849), 12 Duiilop, 276 r. Thomson (1762), Mor. Diet. 13.()is V. ri896] r. 263 . r. ■ ■ (1901), 8.5 L. T. 172. • . r. (1908). Sess. Ca. 179 Thornley v. Thornier, [1893] 2 Ch. 229 . Thornton >-. Thornton (188(5), 11 P. D. 176 Thorp V. Thorp (1881). 90 N. Y. 602 . Thrupp r. Harman (1834), 3 My. & K. 513 Thrustout r. Coppiii (1772^. 2 Wm. Bl. 801 Thiu-buvii r. Steward (1871), L. B. 3 P. C. 478 . Thurston v. Thurston (1895), 58 Minn. 279 : 59 X. W. lOi: Tidd r. Lister (1852). Ki Hare, 140 . Tidswell, Ex parte (1887) 35 W. B. G69 . Timmino'S v. Timmings (1792). 3 Hagg. Eccl. 82 Tirell r.^Bennett (1668). 2 Keb. 89 . Todd. Li re (1854). 4 Beav. 582 .... — v. Todd and Cunniam (1907), 23 T. L. B. 9 ; 24 T. L. B Toh'.s Case ........ Tracy r. Button (1622). Palm. 2ii6 . ■ V. TracT (1902), 62 N. J. Eq. 807 . 1'rail r. Trail (1737). Mor. Diet. 12.985 . Traviss r. Hales (1903), 60 L. R. 574 Tresorier des Etats r. Quenault (1898), Table de Dec.. 1894—1900 Trochel /•. Louis (1897), Sirev. 1897, i. 328 Tucker /•. Bennett (1887), 38 Ch. D. 1 Tudor r. Samyne (li".92), 2 Yern. 270 Tuff. In re (1887). 19 Q. B. D. 88 Turing, Ex parte (1812), 1 Y. & B. 140 . Turnbull c. Nicolas, [1900] 1 Ch. 180* . Turner /•. Meyers (1808), 1 Hagg. C. 414 . Turner's (Sir'E.) Case (UiSl). 1 Yern. 7 . Turner's Trustees '•. Turner (1897), 24 Rettie, 619 Tweddel r. Duncan (1841), 3 Dunlop, 998 Tweedale's Settlement (1854), Johns. 109 . Twentyman r. Hewitt, 1 Menz. 158 . *•. Twentvman, [1903] P. 82 . Twigg's Estate, In re! [1892] 1 Ch. 579 . Udny v. Udny (1869), L. R. 1 H. L. Sc.fc Div. 441 . Ullee, the Nawab Mazim of Bengal's Infants, In re (1885), 54 L. T. 286 Union Bank v. Spence (1885), 4 S. C. R. 339 United States r. Crosly (1812). 7 Cranch, 115 . 8 Calc. . 3.52, 353 181, 221 677, 695 52(; 144, 897 817 681 308 691 309 695 929 344 654 65.5 863 ().57 871 864 858 701 937 934 718 328 802 929 674 715 875 668 674 869 74 328 914 934 657 742 320 572 531 729 672 71.5 ]25 334 125 672 660 344 675 468 872 694 247 6 258 471 Yalliammai r. Annammai. 4 N. L. R. 8 Yalu '•. Ganga (1882), I. L. R. 7 P.om. 84 . Yan Eeden v. Kirstein, Kotze, 184 . Yau Grutten v. Digby (1862), 31 Beav. 561 Yan Rooven r. McCoU, 3 S. C. R. 284 Yeitch (ilelict of). In re (1632), Mor. Diet. 16,087 9*; 897 471 80O 437 640 xlviii TABLE OF CASES. Venkatacharvulu r. Rangacharyulu (1890), I. L. R. 14 :Mad. 318 Venner v. Lortie (1870), 1 Q. L. R. 234 . Vernon's Case (1572), 4 Rep. 1 Veronneau r. Veionneau (181)3), R. J. Q. 3 S. C. lUl) Vialles r. Yialles (1902), Sirey, 1903, i. 43 Yidal Case (1878), J. 2(58 Viditz r. O'Hagan, [1899] 2 Ch. 569, [1900] 2 Ch. 87 Vincent r. Trousseau, (laz. Pal. 88, 1, 707 Vineall r. Veness (18(55), 4 F. & F. 344 . Virasvami Chetti r. Appasvami Chetti (18()3), 1 Mad. H. C. 3 Vischer v. Vischer (1851), 12 Barbour, 640 Wade r. Kalbtleisch (1 874). 58 N. Y. 282 . Wadsworth r. McCord (1886), 12 S. C. R. 466 . Waite r. Morland (1888), 38 Ch. 1). 135 . Wakefield r. Mackay (1807), 1 Phill. 134 . Walker v. Bradford Old Bank (1884), 12 Q. B. D. 515 r. Walker (1813). 2 Phill. 153 r. ■ ■ (1898), 77 L. T. 715 Walkers Exors. r. Walker (1878), 5 Rettie, 965. Wallbridge r. Farvvell (1889), 18 Can. S. C. R. 1 Wallis r. Biddick (1873). 22 W. R. 76 . . . Walrond r. Walrond (1858), John. 18 . . . Ward r. Ward (1880), 14 Ch. B. 506 .... Warden r. Gooch (1806), 7 East, 582 Warrender r. Warrender (1835), 2 CI. & F. 488 Warter r. Warter (1.S90), 59 L. J. (P. D. & A.) 87 . Washer r. Hawkins (1882), 11 L. N. 266 . Wasteneys r. Wasteneys, [1900] A. C. 446 Waters r. Smith (1795), (J T. R. 451 ... Watertown r. Greaves. 112 Fed. Rep. 183 . Watkinsr. Watkins, [1896] P. 222 .... Watson r. Grant's Trustees (1874), 1 Rettie, 882 r. Johnston (1766), Mor. Diet. 4288 r. Jordon (1774), Mor. Diet. 6103 r. Robertson, &c. (1837), 15 Shaw, 586 . r. Threlkeld(1794), 2 Esp. 637 . r. Watson (1905), 21 T. L. R. 320 . Watts r. Shrimpton (1855), 21 Beav. 97 . r. Wilkin (1885), 13 Rettie, 218 and Att.-Gen. for P.ritish Columbia /•. Watts, [1908] A Weir f. Parkhill (1738), Mor. Diet. 5857 . Weldon v. De Bathe (1884), 14 Q. B. D. 339 . Wellesley r. Wellesley (1839), 10 Sim. 256 Wells r. Padgett (1850). 8 Barbour, 323 . ' . and Wells, Ex parte (1905), T. S. 54 Wemyss (Eail of) /•. Haddington (Earl of), Feb. 28th, 18 r. Wemyss (1866), 4 :\Iacph. 660 West and Hardy's Contract. In re, [1904] 1 Ch. 145 Westmeath r. Wcstmeath (1821), .Jac. 126 Westmcath's Children, In re (1819), Jac. 251. n. Weston, In re, Davies r. Tagart, [1900] 2 Ch. 164 . Wostropp's Divorce Bill (1886), H A. C. 294 . Whmton r. Lewis (1824). 1 C. & P. 529 . Whitaker. In re. Christian v. Whitaker (1887). 34 Ch. D. 227 White r. White (1859). 1 Sw. c*c Tr. 592 . Whitehead, Ex i)arte (1885), 14 Q. B. D. 419 . Whit nail /•. (Joldschmidt, 3 E. D. C. 314 . Whittaker, In re (1882), 21 Ch. D. 657 . /•. Kershaw (1890), 44 Ch. D. 296 . Whilton /•. Whitton, []9()1] P. 348 .... Whifworth r. Whitw(.rth, [1.S93] P. 85 . Wied(;maiin v. Walpole, [1891] 2 Q. P.. 534 Wightman r. Wightman, 4 Jolin. Vh. 343 . Wigton r. Fleming (1718), .Mor. Diet. 5771 Wijcsurendra /•. P.artholomeus (1S«4), 6 S. C C. 1 II PAGE 143, 144 . 306 723, 724 567, 568 533 932 99. 801 315 175 356 934 331, 702 J8, 9i: 908, S7( ;xc. Coll. 49, 2.- 177 783 710 101 665 868 865 652 485 331 336 700 327 923 928 526 336 327 368 "0, 871 663 647 648 661 330 873 r92. 800. 801 634 881 644 723 336 176 469 657 858 69(5 336 337 336 863 175 724 865 725 298 702 334 871 131 175 0, 262 62S 716, 408, 9, 2<; TABLE OF CASES. xlix Wildman /•. ■\Vilclman (1S03), 9 Ves. 170 . Wilkie r. Morrison (17()5), Mor. Diet. 5876 r. Stewart (1678), Mor. Diet. 5876 Wilkinson r. Gibson (1867), L. R. 4 Eq. 162 . Willeox /-. Gotfrcy (1872). 26 L. T. 328 , Williams r. Mercier (1884), 10 A. C. 1 r. Thomas, [190l»] 1 Ch. 713 /-.Williams, [1!)04] r. 145 Wilson r. Carnley, [1902] 1 K, B. 720 V. Deans (16t»5), Mor. Diet. 6021 . r. Ford (1868), L. R. 3 Ex. 63 . . r. Forrestaiid Maxwell (1751)), Mor. Diet. 4208 i: Glo-sop (1888), 20 Q. B. D. 354 . r. Paek (1710), Pre. Cii. 295 . r. Turner (1S83). 22 Ch. D. 521 . r. Wilson, 2 R. de L. 431 .. . • V. (1848), 1 H. L. C. 538 . r. (1872), L. R. 2 P. & D. 435 . r. (1908), 24 T. L. R. 256 . Wilson's Trustees r. Wilson (1856), 18 Dunlop, 1096 Wiltshire r. Prince (1830), 3 Hags?. Eccl. 332 . Wing V. Taylor (1861), 30 L. J. (P. & M.) 258 ; 2 8w. & Tr. 278 Wood t: Miller, Dec. 4th, 1823, Fac. Coll. V. Wood (1871), 19 VV. R. 1049 Woodman r. Chapman (1808), 1 Campb. 189 . Woodmeston v. Walker (1831), 2 Russ. & M. 197 Woods r. Woods (1840), 2 Curt. 516 . Woodward v. Dowse (1861), 10 C. B, (N. S.) 722 r. Woodward (1863), 3 De G. J. & S. 672 Wootton Isaacson r. Wootton Isaacson, [1902] P. 146 Wordie i: Sampson (1750), Mor. Diet. 4207 Wright r. Elwood (1837), 1 Curt. 662 r. Butter (179.5), 2 Ves. 673 and Wright, Ex parte (1906), T. S. 707 Wright's Executors r. City of Glasgow Bank (1880), 7 Rettie, Wright's Trusts, In re (1856), 25 L. J. (Ch.) 621 Wyatt r. Henry (1817). 2 Has:g. C. 215 . Wyatt's Heirs v. Kennebec iCc. (1880), 6 Q. L. R. 213 Wyekoon ?•. Gunewardcne, 1 S. C. R. 147 . Wyke r. Wyke, [1904] P. 149 . Wylie, In re, [1895] 2 Ch. 116. X r. X. (1902), Sirey, 1903, ii. 104 . — r. — (1897), Sirej', 1901, ii. 137 ; Dalloz, ii. 200 Yard v. Ellard (1704). 1 Salk. 117 . Yelverton r. Longworth (1864), 4 Macq. H. L. C. 745 • r. Yelverton (1859), 1 Sw. k Tr. 574 Young r. Buchanan (16(;4), Mor. Diet. 64-17 r. Campbell (1790), Mor. Diet. 400 r. Deguise. 29 L. C. J. 194 . V. Feehan (1813), 2 R. de L. 437 . Yvon r. De Veulle (1890), Table de Dec, 1889—1893, p. 63 Zammaretti Case (1894), J. 562 . Ziegan r. Ziegan (1891), 1 S. C. R. 3 Zyclinski r. Zyclinski (1862), 2 Sw. & Tr. 420 . 527 PAGE . 669 . 654 . 643 . 683 . 174 718, 724 . 692 . 867 . 175 . 342 . 331 . 647 . 332 . 719 . 725 . 802 336, 716 908, 909, 923 . 876 658. 662 . 181 137, 256 656, 6(i2 . 716 . 697 . 706 . 261 . 690 , 715 . 871 644, 647 221, 267 670 468 629 185 181 484 438 868 704 . 276 831, 835 . 668 . 188 369, 909 655 . 654 . 783 . 317 320, 572 . 803 . 826 . 909 M.L. ADDENDA. Page 208. Dominica. The law <>t niarriagu is now cjiitaiucd in the Act, Marriage Ordinance, No. 2 of I'.tlO, repealing Act of 1837 (marriage by Wesleyan missionaries) and the llegistration Act of 1874. Page 211. Hong Kong. Marriage Amendment Ordinance, No. 20 of 1910, amends marriage law of 1875, s. 37 (marriages of Chinese). Page 213. Northern Nigeria. Marriage Pr(.)clamation 1 of 1907 and Marriage Amendment Proclamation 5 of 190S. MARRIAGE LAWS. INTRODUCTION. THE STATUS OF MARRIAGE, OR THE RELATION OF HUSBAND AND WIFE. Marriage is a bond between husband and wife which is based on nature and sanctioned by law, and which has as its object that they shall live together for life in the closest community to the exclusion of all other men and women (a). Thus marriage may be called a contract, in the sense of a declaration of will by two persons which has a legal result ; but it is not a contract in the limited sense of the word — viz., a mutual consensus of the wills of two or more persons to create an obligation upon either of them, or one or more of them(?>). For, though the bond is made by the common consensus of the parties, and may therefore be compared to a consensual contract, it requires certain solemnities for its validity in the eyes of the law besides the consensus, and it cannot be dissolved by common consent like the ordinary consensual contracts (c). In most civilised countries the sanctions of religion have been superadded to it. In countries which admit the spiritual supremacy of the Latin and Greek (Western and Eastern) Catholic Churches it (a) Inst, i., 9, 1 ; Dig. xxiii., 2, 1 ; childless marriage is perfectly valid, Burge, i., p. 136, note ; Ontwerp though incapacity of procreating chil- 1820, p. 120, 121; Grotius, Introd., dren is a lawful ground of divorce, i., 5, 1. The procreation of children, {b) Drucker, Handboek voor het though a natural consequence, is not Eomeinsch Recht, ii., par. 122 ; J. v. an essential part of a marriage. A d. Linden, Koopmanshandboek i., 3, 1, marriage in extremis is a valid mar- n. 1. riage, though the procreation of (c) Von Savigny, System, i., par. 53, children is out of the question. A 54. M.L. 1 Z INTRODUCTION. is regarded as a sacrament (d), and in some cases religious marriage is made obligatory by civil law upon Catholics. Marriage forms part of family law. It is the basis for the parental power (parental duty) and its equivalent of guardianship. It is the source of the relationship existing between the members of one family. In treating of the law governing this status, the subjects of inquiry are : (1) the constitution of the status, or, what is essential to the validity of a marriage ; (2) the personal powers, capacities, or disabilities incident to it, and the rights of the husband and wife in the property, real and personal, which either possessed at the time of their marriage, or acquired during the coverture ; and (3) the termination of the status, or the dissolution of marriage by divorce, where divorce has that effect, or b}'' the death of either of the parties. It is necessary to appropriate to each of these subjects a distinct and separate consideration, because the law which decides whether the marriage is valid — that is, whether the status exists — may not be that to which recourse is had in ascertaining the powers, capacities, or disabilities incident to the status, or the rights of the husband and wife in the property of each other. Again, it may be necessary to resort to the law of another country, in order to determine whether the status is terminated, or, in other words, whether the marriage is dissolved by divorce, or to what extent. Questions arise under these several heads in which there may be conflicting laws of different countries, whenever the country in which the marriage is celebrated is not the same as that to which the parties belong by their personal law at the time of their marriage or subsequently. In the present chapter the attempt is made to state in outline the provisions of the principal systems of law with regard to the constitution of the marriage status, such as (1) the Roman law; (2) the Roman-Dutch law ; (3) the canon law of the Western Church (a) generally ; (b) in Catholic countries such as France, Italy, Austria-Hungary, Spain, and Switzerland ; (c) in Pro- testant countries, the marriage law of the Protestant Churches, especially in Scandinavia, Germany, and Holland ; (d) in the United Kingdom (England, Scotland, Ireland, and Wales), and the (d) Lord Stowell ia Dalrymple v. Dalrymple, 1811, 2 Hagg. Cons. 54, 64. INTRODUCTION. 3 United States, with an account, due to the exceptional position accorded to them in England, of the Jewish law of marriage and the usages of the Society of i^'riends ; (4) the canon law of the Eastern Church which is in force in Turkey, Eussia, Austria-Hungary, Greece, Eoumania, Montenegro, Bulgaria, and Cyprus, and the East generally ; (5) the chief Oriental systems of law, such as the Hindu and Muhammadan laws in India, and the latter law which is also in force in Cyprus, Gambia, and elsewhere in British dominions, the Buddhist law in Burmah, and the laws of China, Japan, and Siam. 1—2 CHAPTER I. PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. SECTION I. Roman Law. In the Institutes of Justinian marriage is defined as viri et mulieris conjunctio individiiam vitce consuetudinem continens (e). An earlier definition by Modestinus adds the words " divini et humani juris communicatio " (/), emphasising the essentially religious character of the relation according to early ideas, especially when the tie was formed by confarreatio. Fundamental Conditions. — These have to do with (a) the capacity (conuhii(vi), (])) the age of the parties, and (c) the consents necessary. (a) Conubium. — Justce miptice, which gave the husband paternal power over the children, required conubium (g), and this was reserved to Roman citizens or communities to which this privilege had been expressly granted. After the decree of Caracalla (211 — 217 a.d.) this qualification was general throughout the Roman world. Relative Impediments. — The chief bars to marriage were (1) too close relationship, whether by blood, affinity, or adoption ; and (2) inequality of position, and certain other grounds peculiar to Roman legislation. The prohibition of marriages between near relatives goes back to a remote period. As to Greece, there is a remarkable passage in Euripides (Andromache, 172 — 177), where the absence of laws prohibiting incestuous union is described as a characteristic of the barbarians : ToLOVTov nav TO jSapftapoi' yivos TTari'jp re dvyarpl irals re fJ-'i'lTpl \xiyvvTaL {e) Inst, i., 9, 1. the absolute conditions of capacity, (/) Dig. xxiii., 2, 1. i.e., freedom and citizenship, but the (r/) Ulp. V. 3. " Conubium est relative conditions, i.e., the absence of uxoris jure ducendae fac\iltas." legal impediments from relationship Under this head are groiiped, not only or otherwise. ROMAN LAW AFFINITY, IMPEDIMENTS. 5 Kopy] t' abe\(f)S) .... koI rcorS ovbei^ efetpyet I'o'/^oj. h /j,i/ irap ijixas €l Jews and Christians (r), and persons guilty of adultery together or parties to an abduction (x). (m) Voet, lib. 23, tit. 2, n. 35 ; 1 (r) Voet, lib. 23, tit. 2, n. 39. Hagg. C. R. 352, 393. (s) But see p. 23. {n) Inst. Jur. Can., lib. 2, tit. 13; Dig. (0 Dig. xxiii., 2, 31 ; ihuL, 44. xxiii., 2, 54; Bnrge, (1st ed.) i., 149. {it) Dig. xxiii., 2, 44 ; Cod. v., 4, 29; (o) Cod. V. 4, 26. Nov. 117, G. Ip) Dig. xxiii., 2, 3(), GO, 67. (v) Cod. i., 9, 6 ; Hunter, 687. («/) Pothior on the Pandects, lib. 23, (.x) Cod. ix., 24, 1 ; Nov. cxxxiv., tit. 2 ; Oig. xxiii., 2, 3H, 57. 12; t7m/., cxliii., cl.; Dig. xxxiv., 9, 13. ROMAN LAW — FORM OF MARRIAGE. 7 (b) Age. — The parties must be capable of marriage ; the rule had long been that females must be over twelve, and Justinian fixed the age of fourteen for males (>/). (c) Consents Required. — The consent of the parties themselves was necessary, and also the consent of persons to whose power they were subject. " NuptiaB consistere non possunt, nisi consentiant omnes ; id est, qui coeunt, quorumque in potestate sunt " (z). " Nuptias non concubitus sed consensus facit"(a). Thus the father's consent was requisite to the validity of the marriage of such of his children as had not been emancipated, and notwithstanding the child was a soldier. " Filius familias miles matrimonium sine patris voluntate non contrahit." But an implied consent was sufficient, " qualis est ejus qui scit neo contradicit "(h). But if those persons could not give their consent by reason of absence and the like, consent could be supplied by a Court for good cause (c). The consent of parents was required for the marriage of emancipated daughters, e.g., of widows under twenty-five years of age (d). The consent of a woman's guardian to her marriage was not necessary (^). Form of Marriage. — The marriage relation was created by the consent of the parties and no specific rites, civil or religious, were necessary. For the ordinary marriage of Imperial times, non-maiius or free marriage, no form of solemnisation was prescribed ; the requisite consent might be proved in any way whatever. The most ancient forms of marriage in Eome were those which were celebrated according to formal vites, per confarreationem ov per coemptionem. The former was an elaborate religious celebration, and the latter represented a fictitious purchase of a wife. Both constituted the maims marriage, that is to say, the marriage where- by the wife was brought under the maims or power of the husband. A third method of creating manus was nsns, an informal cohabitation (u) Inst, i., 10 pr. Baudry-Lacan . ii., pp. iO, 98. (z) Dig. xxiii., 2, 2. (c) Dig. xxiii., 2, 2. (a) Ilml, 1. 17, 1. 30. (rZ) Cod. v., 4, 20. (5) Cod. v., 4, 12; Dig. xxiii., 2, 2, (e) Ihid., 4, 18, 20; Dig. xxiii. 18, 35 ; Cod. v., 4, 5. See further 2, 20. 8 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. as husband and wife continuing for a year without interruption. This was ah-eady known at the time of the Twelve Tables (/). During the time of the Empire and long before the reign of Justinian, the strict marriages with manus fell into disuse, and were superseded by marriages without manus, known as "free" marriages. The latter did not alter the status of the wife, nor subject her to the marital power {manus) of her husband, but she still remained within the manns of her ^ja^e?- familias or of the person who took his place. The marked distinction between these marriages may be inferred from the different appellation bestowed on the wife according as her marriage was with or without manus. " Genus est uxor; ejus duae formse ; una matrumfamilias, earum qufe in manum conveniunt ; altera earum quae tantummodo uxores habentur." (g). The traditional ceremonies (//) observed at a Roman marriage were not deemed essential to its validity. " Si vicinis, vel aliis scientibus, uxorem liberorum procreandorum causa domi habuisti, et ex eo matrimonio filia suscepta est : quamvis neque nuptiales tabulae, neque ad natam filiam pertinentes, facta sunt, non ideo minus Veritas matrimonii aut susceptae filiae suam habet potestatem " (i). " Si donationum ante nuptias, vel dotis instrumenta defuerint, pompa etiam aliaque nuptiarum celebritas omittatur : nullus existimet ob id deesse recte alias inito matrimonio firmitatem, vel ex eo natis liberis jura posse legitimorum auferri ; inter pares honestate personas nulla lege impediente consortium, quod ipsorum consensu atque amicorum fide firmatur " (j). The marriage might be contracted even without the actual presence of the husband, if the wife were taken to his house. " Mulierem absenti per literas ejus, vel per nuncium posse nubere placet, si in domum ejus deduceretur ; earn vero, quae abesset, ex Uteris vel nuncio [suo] duci a marito non posse : deductione enim opus esse in mariti, non in uxoris domum ; quasi in domicilium matrimonii " (A). " Denique Cinna scribit : Eum qui absentem accepit uxorem, et (/) Gaiuf', Inst, i., 110 d se. (v) Cicero, Topics, 3. (./) Ihid., 22. (A) Brisponius do Ritu Nuptiarum. [k) Dij?. xxiii., 2,.'). ROMAN LAW CONTUBERNrUM. 9 deinde rediens a ccena juxfca Tiberim perisset, ab uxore lugendum, responsum est " (/). Betrothal. — The marriage was generally preceded by a formal betrothal {sponsalia), defined as menfio et repromissio nuptiaruni faturantin (m). Originally this took the shape of a verbal contract {stipidatio), and an action seems to have been given for breach of the promise by allowing a penalty agreed upon to be enforced ; but afterwards it was made informally (nudns consensus sufjicit ad constitiienda sjwnsaUa) {n), and the only remedy for ])reach was that the betrothal gifts [arrha sponsalicia) given by the jjarty breaking off the engagement were forfeited, and the gifts given to him or her restored to the giver (o). Betrothal was converted into marriage by actual cohabitation. By the lex Papia Poppaea, if the marriage did not take place in two years, except for special reasons, such as ill-health of the parties, or death of parents, the contract was at an end( j:>). Dissohition, — Marriage was determined by a party dying, or becoming a slave or an alien ; by supervening prohibited degrees of relationship consequent on adoption ; or by divorce {q). Concubinage. — Concubinage under the Empire was admitted as a permanent legal relation, which in many respects was assimilated to marriage, e.g., so far as the children's paternity, maintenance, and rights of succession or intestacy were concerned (r). It was distin- guished from marriage by the absence of the adfectio maritalis, and concubines generally belonged to the class of slaves of freed women or personce inhonesta (s). A man could not have more than one concubine at a time, nor a wife and concubine at the same time (t). Under the later Empire it was discouraged and prohibited for high officials under Constantine, and finally made illegal in the ninth century. Contubernium. — Though slaves were incapable of marrying, two slaves, or a slave and a free person, might form a connection known as contubernium, of which the issue were cognati to each other on becoming free (u). {1} Dig. xxiii., 2, 6. (r) Dig, xxv., 7, 3 ; xxxii., 49, 4. [m] Ibid., 1, 1. (s) Ibid., 1,1. (n) Ibid., 1, 4. (<) Cod. v., 26; v., 5, 2; ix., 9, 18; (o) Cod. v., 3, 15. but see Esmein, ii., 106 — 9. {j}) Dig. xxiii., 1, 17 i Cod. v., 1, 2. (») Dig. xxiii., 2, 14, 3. Iq) Dig. xxiii., 2, 67, 3. 10 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. StupriDii ^Yas any other connection between a man and an unmarried free woman (x). The personal capacities of the spouses and their proprietary relations as a consequence of the marriage, and the termination of the marital relation by divorce, are referred to subsequently under those heads. SECTION II. Roman-Dutch Law. Marriage a Form of Guardianship. — The customs of the Germanic tribes, including those settled in Holland, which, subsequently modified by the Roman law, developed into the system of Roman- Dutch law, regarded marriage primarily as a form of guardianship. According to Germanic custom, a woman was always in the mundium of some male person. By mundium was understood the protection and representation granted to persons who are socially and physically weak — that is to say, all those who were incapable of bearing arms. In a society of persons in which the authority to maintain the law was in the hands of its members, and of which the membership rested on the ability to bear arms and defend oneself ("weer"), those who, for want of strength or some other reason, were unable to do so, could not play an active part, and were necessarily placed under the authority of those whose protection they needed. Originally, mundium was not limited to family law. Gradually it lost its wider meaning, and in its restricted sense it received different applications, as family relations became classified into separate groups, and the conception of mu)idinm appeared under different forms, with special rules and special names — e.g., of marital power, parental power, guardianship, and curatorship (y). The woman came within the legal sphere of the head of the family. He was bound to protect her, and the relatives had an obligation to see that he did so. On the other hand, she could not arbitrarily withdraw herself from this protection nor be withdrawn (./;) Dig. xlviii., 5, 34. B. E., i., 120 d seij., and authors (//) Fockema Aiulre?c, Bijdragon, i., quoted. ;j7 tt seq. ; llet. Oud. NedoHandsch ROMAN-DUTCH LAW — BETROTHAL BY GUARMAN. 11 from it without his consent (z). His guardianship entitled him to act as her agent and as such to enter into contracts on her hehalf. The man who wanted her for his wife had to negotiate with the head of the family and to enter into a contract of purchase and sale, as to which the male relatives of the woman were consulted (a). By purchasing her, he made her subject to his own mundium. Though originally this contract was entered into and performed at the same time, subsequently the two acts — that of negotiation with the head and members of the family {dcsponsatio) and that of taking away the bride {traditio puellce) — became separated, and took place at different periods. The purchase price was first settled between the negotiators (which formed the betrothal), and the marriage ceremony was afterwards performed with many formalities in order to show that the bride had left the mundium of the head of her own family and had entered that of her husband (h). Betrothal by Guardian. — This point marked a distinct phase in the evolution of the marriage contract. Instead of representing the value of the woman, the purchase price became the sum paid to the head of the family for his giving up the viioidiuin exercised over her. Gradually this payment lost its substantial character of purchase-money, and retained a symbolic character only. The betrothal became a contract whereby an arrha or mundium was delivered as a symbol of its binding nature (c). This had a twofold consequence. The person in whose mundium the woman was at that moment (mundoaldus) became bound to give her in marriage, while the bridegroom, on his part, bound himself to take the woman as his wife, and to pay the agreed purchase price, even if no actual sum of money passed between them (d) at the time, but only an arrlia or ))iundiu))i. The consent of the bride to this betrothal, though originally not required, became essential at an early period, and, after once consenting, she became bound by the betrothal to allow herself to be given as a wife to the bridegroom, and to consider herself bound (z) Fock. Andr., Het Oud Ned. (a) As to her own consent, cf. Fock. B. R., ii., 132. Tet the cohabitation of Andr., Bijdvagen, i., 66. a woman with the man with whom she (&) Fock. Andr., Het Oud Ned. had eloped was considered a valid B. E., ii., 133 — 134. marriage: Fock. Andr., Bijdragen, i., (c) Fock. Andr., Bijdragen, i., 67. 65 — 66. {d) Fock. Andr., ihid. 12 PRIXCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. as such from that moment. The betrothal created a rinculuDi juris between the bride and the bridegroom (e). Thus the sum of money \Yhich the bridegroom promised to pay again changed its character. Instead of being kept by the viiDidoaldiis for the benefit of the nearest relatives (the family), it became a gift to the bride — at first partly, afterwards wholly — with the idea that it should serve as a provision for her widowhood. The bride was no longer bought by the bridegroom, but provided with a dus by him (f). The betrothal could be rescinded by mutual consent, and, in certain cases, at the will of either of the i^arties. It was revoked by a second betrothal of one of the parties followed by conciibitus, or by the elopement of the bride with another person than the bridegroom, and with the consent of her mundoaldus. If the bridegroom broke off the betrothal for no valid reason he became liable to a fine. The marriage ceremony was made a formal and symbolical act in order to give publicity to the passing of the bride into the mundium of the husband. The principal part of that ceremony was the actual taking possession of the wife by the husband, but the marriage was not comj)lete unless, and until, it was consummated by the conciibitus (g). As the emancipation of women advanced, the marriage contract underwent a further change (/O. With the extension of the royal power and the capacity of the executive authority to enforce the laws of the land, the niiindiitni of the family lost its importance. It became incumbent on the central authority, by reason of its obligation to secure equal rights to all the members of the community, and to grant special protection to the weaker classes. The duty of protection which was involved in the iiiiDidiiiiii became vested in the central authority of the State, in so far as this was possible. Women were first to benefit by the strengthening of the royal power ; though in this respect the evolution has been very gradual. Step by step the woman became emancipated from the family guardianship. Its character relaxed. The number of instances (e) Fock. Audi-., Bijdragen, i., 07. Unwin, 1901), pp. 391, 392. (/) Possibly the meta {
  • s) had (//) Fock. Andr., Bijdragen, i., 00,G9. always been given by the bridegroom : (A) Fock. Andr., ihid., i., 38. see Villari, History of Florence (Fisher ROMAN-DUTCH LAW — BETROTHAL BY WIFE. 13 where a woman was absolutely incapable of acting without a guardian became definitely marked out. It rendered, on the one hand, the necessity of a permanent guardian less obvious ; and, on the other hand, introduced a guardian of choice, specially appointed for the occasion. Thus it became common for women to remain without a guardian unless, and until, they had to perform an act for which the assistance of a guardian remained essential. The last survival of the former condition of things was the inability of a woman to appear in Court except by a guardian, and the necessity of a guardian's assistance in case she wished to enter into a contract (i). In the course of this development, the former characteristic idea has disappeared that a member of the community, in order to be mondig, should be able to bear arms, as the person who had the authority to keep the peace also possessed the power to maintain that authority. As the character of mondifi became detached from the idea of physical ability for self-defence, it was only natural that the recognition of mondigheid in women who had come of age should follow. Betrothal hy Wife. — As soon as it was recognised that a woman was capable of becoming mondig, and that her status, after she had come of age, became equal to that of a man, she was rendered capable of entering into a betrothal herself, with the consent of her guardian, and of promising that she would give herself as wife to the bridegroom. This again changed the form of the contract. Like all other contracts, it was entered into between the two parties by the handing over of a symbol, a, godspenning, or even without any symbolic formalities by the mere expression of intention in the presence of witnesses, whereby both parties bound themselves to enter into marriage with each other. The marriage ceremony should have changed accordingly, when the giving away of the bride by her guardian lost its significance, and the bride, by fulfilling the contract which she had entered into at the time of the betrothal, gave herself into the miotdiiim of her husband. Here, however, the old form was retained, and the giving away of the bride by her guardian, or some special representative — as a rule selected by the bride herself — remained one of the usual marriage ceremonies (j). (i) Fock. Andr., Bijdragen, i., pp. .'38 et seq. {j) Fock. Andr., ibid.,i., 70, 7U 14 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. There is, however, nothing extraordinary in this, as the marriage ceremony itself never was, and never became, absokitely essential to constitute a valid marriage. The concuhitus and the living together of the parties as husband and ^Yife remained sufficient for the conclusion of a binding marriage (A;). Influence of Canon Law. — But a still greater factor in this result than the development of a strong central worldly authority was the influence exercised upon the character and form of marriage by the canon law. Its object was twofold. On the one hand, it desired to facilitate marriage and legalise cohabitation actually existing between a man and a woman ; on the other hand, it desired that such a relation should be binding and of public knowledge. Thus while the Church enjoined a formal ceremony — the parties to a secret marriage, or the persons performing it, were liable to ecclesiastical penalties — the formality was not regarded, even by the Church itself , as indispensable for the constitution of a valid marriage. The Church was too anxious to uphold the sacrament of marriage. Even in case the marriage ceremony had been gone through, the marriage only became indissoluble after its consummation (/). On similar lines the Church, though trying to introduce its own require- ments, recognised the validity of a marriage which had been entered into without the intervention of the priest by the mere sponsalia de pr^senti, or by the living together of the parties {copula carnalis) having taken place after the betrothal {sponsalia defuturo) {»>). On the other hand, its desire to enforce the prohibition of all secret marriages, especially those which would be invalid, e.g., within the forbidden degrees of relationship, made the Church insist on publicity. No marriage ceremony might be celebrated unless the wish of the parties had been expressed to the parish priest, and had been made publicly known by him to the com- munity by the pronouncement of "banns" on consecutive Sundays. The celebration should take place in facie ecclcsice {n). Though the Church only recommended, and did not yet impose, the observation of these rules upon its members as a condition for the validity of their union, most of them complied with the wishes of the Ci lurch, and the bride, when electing the special guardian (A-) F(,ck. Aiulr., ibid., i., 68—69. {m) L'f. p. 18. (/) Cf. pp. 18, 20, Fock. Anir.,ibid. {») Cf. pp. IS, 20. i., 71, note 2. CANON LAW. 15 who should " give her away," often chose the parish priest. The priest thus in facie ecdesiie heard the parties once again express their wish to be married to each other, and thereupon gave the bride to the bridegroom. Immediate!}- afterwards he entered the church, together with the parties, and performed the rehgious marriage ceremony. In later times the whole ceremony took place within the church. Neither the traditio jmellce nor the celebration of the marriage were made essential in themselves : as to these, parties could please themselves if they refused to please the Church (o). Finally, the Council of Trent (1536 — 63), following this line of thought, decreed in its 24th session, c. 1, de reform, matrim. that the sponsalia de prasenti, in order to be valid, should take place before the proper priest of the parties and two witnesses, and that this ceremony should be the only valid ceremony to constitute marriage, with the exclusion of all other modes of celebrating marriage {p). In order to follow the effect of the canon law on marriage it will be necessary to consider more fully the rules laid down by the Catholic Church, and its two main branches of the Western and Eastern Churches, and especially the system as it was built up by the former Church in the Middle Ages. SECTION III. The Canon Law of the Western Church. I. Generally. — The contribution made by the canon law to the conception, attributes, and conditions of marriage has been perhaps the most important factor in its legal development. The term canon law is here applied to the provisions of the various com- pilations which go to make up the Corpus juris Canonicioi Western Church law, namely, the " Decretum Gratiani " (1139 — 1142) : the " Decretals of Gregory IX." (1234) ; the " Liber Sextus " or " Sext " (1298); the "Clementines" (1313, 1317); the " Extra vagants of John XXII." (1316 — 1334) ; and the " Extravagantes Communes " (1281 — 1284) [q). The canon law of the Eastern Church is con- sidered separately. The golden age of the canon law was the period from the middle (o) Fock. Andr., Bijdrageu, i., 71 — {yiHl%voo(l, p. 264, s.r. (s) Seo Lacey, Handbook of Church Solent. Law, pp. 44—73. CANON LAW MARRIAGE STATUS. 17 of parents. The authority enjoyed by this general law of the Church in the different countries which acknowledged its spiritual supremacy will be considered in more detail subsequently. The historical development of the canon law of marriage is stated comprehensively in such works as Esmein's " Le Mariage en Droit Canonique," and Holtzendorff's "Encyclopaedia" (ss), to which the following account is largely indebted. It is sufficient for historical purposes here to say that under the Eoman Empire the marriage law of the Church was distinct from the civil law and subordinate to it and the civil jurisdiction ; after the fall of the Empire the same conditions continued, and t'ue Church only exercised a disciplinary power with regard to marriage ; after the tenth century the Church acquired full jurisdiction and legislation over marriage and retained them till the sixteenth century. With the Reformation, as already noticed, the Church's exercise of the power of legislation and jurisdiction as regards marriage was considerably restricted both in Protestant and Catholic countries. The subject is here considered under the following heads : (1) The character and constitution of the status ; (2) The conditions of the marriage contract as regards capacity of parties and formalities, and the effect of non-compliance with them, or " impediments " ; (3) The ways of impugning the validity of marriages ; (4) Second marriages and concubinage ; (5) Dispensations ; (6) Changes made by the Council of Trent. The provisions of the canon law with regard to the effect of marriage on the personal and proprietary rights of the spouses, and with regard to dissolution of marriage and separation, are considered subsequently. 1. Character and Constitution of the Status. — The canon law assigned to the contract creating the status the quality of a sacrament in addition to the obligation formed by the contract of marriage. The marriage contract (sponsalia) was distinguished from the relationship between the parties consequent upon it (nuptia). In the early period of canon law the term sponsalia meant the contract completed by the spouses living together, but preliminary to it and made with certain formalities. Subsequently this ceremony came to be restricted to jn'econtracts or betrothals. {ss) Article Kirchenrecht, by U. Stutz, Encyc. ii., 811 et seq. M.L. 2 18 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. By the end of the twelfth century two distinct forms of marriage contracts had become recognised : the sponsaliaper verba de livmsenti, formed by exchange of consents which the Church recommended its members (Jideles) to make in public in facie ecclesice, and this was indissoluble except in the case where it was not consummated, and it was null ab initio in the case of impotence, or of the parties being within prohibited degrees of relationship to each other ; and the sponsalia per verba defuturo, which entailed an obligation to marry, and on sexual relations taking place became what was called a presumptive marriage. Marriages were also distinguished as matnmonium ratnm, where consents were exchanged, and consummatum, w'here there was also bodily intercourse, and different schools of canonists emi)hasised respectively the element of consent, or that of cojmla. Nuptial benediction by a priest was also required by the Church, but was not essential. For betrothals, which implied an obligation to marry the betrothed person and no one else, in the Western Church, during the thirteenth to the sixteenth centuries, when they were made in anticipation of a non-immediate marriage, it was established that no form was required, but the parties must be of sufficient age, and for this purpose seven years was taken to be the minimum. The consent of the parents was not necessary, though, if the parties were infra pubertatem, the parents could enter into the contract on their behalf ; and while in theory such contracts were obliga- tory, they could be dissolved by the parties' consent or for causes for which non-consummated marriages could be dissolved. Recog- nition was also made of the element of contract by allowing betrothal by proxy under a special and actual mandate from the parties (t). In the West conditional marriages were also allowed, which could be converted into actual ones by subsequent consensus de prcesenti or by copula. Clandestine marriages — i.e., those of which proof was wanting by their being not made in public {in facie ecclesice) — were probi])ited under pain of ecclesiastical punishment, such as penance ; but never- theless when made they were valid. Similarly proclamation of banns {demmtiationes) , which were required for the whole of the Church by the Lateran Council (1215), was not an essential the absence of (0 Esmoiii, i., 15:5— K!:?. CANON LAW IMPEDIMENTS. 19 which invahdated the marriage. Such marriages, however, besides being canonically punishable, gave no right to dowry. The proof of marriage was at first allowed to be made by the avowal of the spouses, but complete proof required two witnesses. The "act" (or instrument executed by the parties) of marriage was not enough, and in early times marriage registers were not kept. Proof could be made by showing possession of the marriage status by cohabitation, and according to some opinions (which did not, however, influence the Courts), the man's word was a,llowed to prevail over that of the woman, though it could be rebutted by physical inspection. No presumption was held to arise from having a wedding-ring, and only a doubtful one from giving it. 2. Capacity, Forms, and Impediments. — The term "impediments" is the most convenient head under which to consider the conditions of the marriage contract ; and the canon law gave special importance to, as it had also orighiated, the following classification of impedi- ments. They might be (a) destructive, which prevent the constitution of the status {dirimentia, dirimants, trennende Ehehindernisse), and these again might be "public" — i.e., if the impediment is based on considerations of general interest, and is therefore available to third parties, or ex officio, such as previous marriage or holy orders, or private, if the impediment is one granted merely in the interest of certain persons and available to them only — e.g., impotence ; or (b) prohibitive {prohihitira or impedi- entia, lyroliihants, aufscJiichende Ehehindernisse), which prohibit or suspend entering into the contract. A disregard of these entails ecclesiastical penalties on the offenders, but does not invalidate a contract actually entered upon. Destructive Impediments. — The former class were summarised in the following verse : Error, conditio, votum, cognatio, crimen, Cultus disparitas, vis, ordo, ligameu, honestas, Aetas, aflfinis, si clandestinus et impos, Eaptave sit mulier nee parti reddita tutse Hsec facieuda vetaut connubia, facta retractant. They may also be grouped under the heads of (1) want of consent — e.g., mental weakness ; (2) incapacity or disability, which may be (a) absolute— (?.(/., want of age, or (b) relative— e.f/., prohibited degrees of relationship or affinity. 2—2 20 PRI^'CIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. Want of Consent. — This head embraces the cases of dissensus where one spouse was incapable of contracting owing to mental incapacity or the consent was given without intention — e.g., in joke ; force (vis) and fear (metus), which nullified the contract, though mere trickery (dolus) did not; error of person — i.e., identity or con- dition, the last-named including such a status as slavery, but not of quality — e.g., virginity, or fortune ; and consummation after knowledge of the defect prevented nullity being claimed. Absolute Incapacity or DisaMlty. — These include the impediments of want of age (though for this it was held that " 2)rcsumptio ccdehat veritati," and if such a marriage had been consummated " malitia supplehat cEtatem'''); difference of faith (cidttis disparitas), i.e., of a baptised with a non-baptised person, with regard to which it may be noted that the marriage of a Christian with a heretic or excommunicated person was held good in the Western Church, but not in the Eastern ; impotence {coeundi impotentia), in which case it was required that the incapacity should have existed before marriage and not have merely supervened after it, though this, could be presumed from the proof of its existence after marriage,, and a cohabitation of three j'ears from the marriage was necessary before the contract could be repudiated ; prior marriage {Ugamen) ;: solemn vows of religion (votiim) if these were made anterior to marriage, but if they were taken after it, they did not affect it, and then they could only be made by mutual consent, and by both parties together; and holy orders (ordo). As regards this last, in the Western Church, in practice, married persons are not admitted to orders, though there is no express prohibition of it ; but from the end of the fourth century it was required that married clerks in the higher grades should live with their wives as with sisters. Relative Incapacity or Disability. — The third head requires more consideration, llelationship {cognatio) might be natural, legal, or spiritual. A marriage which was subject to a destructive impediment, if not clandestine, and one of the spouses contracted in good faith, was admitted as valid for the purpose of making the issue of it legiti- mate. Tins rule was not admitted in Roman law, and the Eastern Church continued its exclusion (u) ; but in the twelfth century the theory of the putative marriage made its way into the general canon law from a source which is said to have been tiie Erench. (n) Eemein, ii., 33. CANON LAW C0N6AMGUINITY AND AFFINITY. 21 Church. The recognition of this rule afterwards extended to make the proprietary relations of the spouses under such a marriage the same as under a valid union {x). The Church followed the provisions of the civil law with regard to natural relationship, but adopted a different reckoning of degrees in the collateral line («/). Degrees of Consanguinity and Affinity.— How Computed in Civil and Canon Law.— The civil law, in reckoning degrees, counts, as regards the direct line, a degree for each generation ; as regards collaterals, it counts from one of the persons whose relationship) is in question up to the common ancestor, and then down to the other. Thus father and son are in the first degree, brothers in the second, uncle and nephew in the third, first cousins in the fourth. The canon law reckoned direct relationship in the same way, but in the collateral line it counted only up to the common ancestor, and not down again. According to this mode of computation first cousins are in the second degree, because each of them is only two generations distant from the grandfather, who is the common stock. In the unequal collateral line, where one of the two is further removed than the other from the common ancestor, the canon law reckons the distance by the number of generations of the person furthest removed. Thus, a niece is related in the second degree to her uncle, because she is related in the second degree to her grand- father, the common stock ; while, according to the same method of reckoning, brothers are in the first degree, and first cousins in the second (a). The civil law^ reckoning is followed by the Eastern Church, but the seventh degree is treated by it as a prohibitive impedi- ment only. After the fall of the Western Empire the prohibition was extended by Western Church Councils to the sixth degree of the civil law — i.e., second cousins. Until the fourth Lateran Council, in 1215, in the West, the prohibition extended to the seventh degree (canonical or Germanic) (6), though the impedimentum diriviens did not go so far. After that Council the canon law confined the effect of the prohibition and the nullity to the same {x) Esmein, ii., 36, 37. Comin. ii., s. 206; Erskine, i., 6, 8. {y) See Hammick, Marriage Law {h) See Stephen, Eccles. Statutes, i., (1887), pp. 37, 38. 270 ; and this was the law of the Church (a) Gibson, Codex, 498 ; Blackstone, of England. 22 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. extent as the civil law — i.r., up to the fourth canonical degree (eighth degree civil) ; and such is still the law. But dispensations allowing marriages within the third and fourth degrees, and even ■within the second, are very largely and easil}' granted ; and there is reason for holding that the canon law is practically relaxed to this extent. Legal relationship — i.e., by adoption — is accepted by the canon law exactly in the same terms as in the legislation of Justinian ; it forbids marriage " inter adoptantem et adoptatuni (vel adoptatam) ; inter adoptantem et filiam adoptati ; inter adoptatuni et adoptantis matrem aut sororem, imo et viduam ; inter adoptatuni et filios adoptantis." But there is no canonical legislation on the subject; and the law of each different country must be compared with the adoption of Justinian as the model. Spiritual relationship — i.e., relationship by baptism or confirma- tion — was held in both Western and Eastern Churches to debar marriage between godparent and godchild, and the baptised child and the baptising minister (paternitas), between natural parents of a baptised or confirmed child and its godparents, and between the baptising minister and the parents of the baptised child or the godparents {compaternitas) , and between a baptised child and the natural children of its godparent (fraternitas) ; and in the Eastern Church, indirecta compaternitas — i.e., between natural parents and godparents, and their spouses — was also a bar(c). Affinity as an impediment to marriage was derived from the Levitical law, and in the case of collaterals (as in that of persons related directly to each other) by the sixth century A.D. it was a bar to a man marrying his deceased wife's sister or his brother's wife (except as a duty in the Jewish law), or the wife of his paternal uncle, though it seems that such marriages were not thereby made null in law((0- From that time the impediment was gradually extended till the twelfth century, when affinity was made an impediment as far as relationship, and besides primary affinity — i.e., that existing between a spouse and the relations of the other spouse — further kinds were introduced. The Lateran Council, however, {() This was also for a tiiiiG admitted ('/) Turner, Chiirch (iuartorly in the West, but exceptionally, and Review, October, 1908, citing the certain individual foiTns of it wore loft Councils of l*ilvirn and Neocnosarea. to local custom to decide upon. CANON LAW — ADULTERY, RAVISHMENT. 23 established the primary kind of affinity only, making it an impediment nm diyiiiiens up to the fourth degree. Affinity by illicit connection was also recognised (e) ; and the impediment extended as far as the affinity from marriage ; it was restricted by the Council of Trent to within the second canonical degree. There was also the impediment of morality {imUica honestas) derived from expressions in the Roman law, but not from express provision of that law, which arose from a j^rior betrothal — e.g., a man or woman could not marry a relation in the fourth and, since the Council of Trent, in the first degree of his or her betrothed, nor could a spouse marry a relative in the fourth degree of the other spouse— where their marriage, though contracted, had not been consummated (/"). The impediment crimen, originally only penitential in character, became restricted to cases of adultery, murder of the spouse, and ravishment. Adultery and Murder. — In the case of adultery, the civil law in the time of Augustus prohibited an adulterous wife from marrying anybody, and in the time of Justinian she could only marry under certain limitations (_f/). The canon law allowed a guilt}' wife to marry anyone, even a person who had committed the offence with her, except in three cases : (a) where both accomplices had success- fully compassed the death of the husband, even without adultery ; (b) where the wife alone had successfully compassed the death of her husband in order to get free, and committed adultery ; (c) where, after having committed adultery, she had promised to marry or attempted to marry a third person ; and the same rule applied to a guilty husband in like cases (Ji). Eavishment. — In the case of ravishment, at first both in civil and in canon law, marriage wdth the ravisher was prohibited, but subse- quently the canon law adopted the view that a man might carry off his betrothed without being guilty of ravishment, and, secondly, that any woman could afterwards marry her ravisher if she were put into a position to exercise her free will in the matter {i). (e) For a time this was recognised See p. G, ante. by English statute law. (//) Council of Meaux, 845 ; Council (/) See Esmein, i., 145, 146, 378, of Tribur, 895 ; Eeichel, 363; Holtzen- 379 ; Eeichel, 361 ; Holtzendorff, dorff, ii., 941 ; Esmein, i., 384 et seg. Encyc. ii., Kirchenrecht, 941. (i) Esmein, i., 391. (/) Esmein, i., 384 ; Hunter, 683. 24 PmXCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. f^2. Prohibitive Impediments. — These have been similarly summed ujD in the lines : Ecclesise vetitum, tempns, sponsalia, votum, Impediunt fieri, permittuut facta teneri. The first named of these was an ecclesiastical injunction to a member of the Church not to marry a particular person, and the following persons were the objects of an interdict : a person guilty of incest, a husband who killed his wife, the murderer of a priest, a ravisher of some one else's wife or betrothed ; and marriage with the widow of a person in holy orders, a Jew, or infidel, and clandes- tine marriage — i.e., without banns, or not in Jacie ecclesice or extra parocliialem ecclesiavi — were similarly prohibited. The second referred to particular periods of the Cburch's year — e.g., Quadra- gesima, or from Septuagesima to Low Sunday, which is the English rule, or from Rogation Monday to Saturday after Pentecost, or from the first Sunday in Advent to the octave of the Epiphany (A). The canon law did not, however, sj)ecify as an impediment the annus luctus of a widow, which Avas enjoined in the civil law' and has been reproduced in the modern systems. The other impediments are betrothal (l) and simple vow of chastity or religion. All these impediments were disciplinary only. 3. "Ways of Impugning Marriage. — The methods provided by the canon law for impugning or preventing marriages ma}^ be briefly noticed. They were the accusatio (;«) and the denuntiatio, which were strictly actions j)ro salute anima. The accusatio in principle was available to any person ; but in practice the general application was restricted to cases where the proposed marriage constituted a sin, where, e.g., a bar arose from prohibited relationship and affinity, puhlica }io}iest<(s, iy)tu))i solemne, ordo, ligamen, crimen, and disparitas culfus; but not to cases, such as want or defect of consent, imi)otence, and impubert}', which were reserved to the spouses to take action upon, both sjiouses being on an equal footing in this respect. Ultimately accusations were restricted to near relatives only ; no one who had a monetary {k) Lyndwood, 27:5, 274. Hen. Vlil. c. 38 (E.) and 33 Hen. (/) In England and Ireland by VIII. c. G (I.), statute precontracts had no effect (hj) See Tjyndwood, 277. against cousumniatod marriage (.'32 CANON LAW — DISPENSATIONS. 25 interest in the matter was allowed to impugn a marriage, and an action for nullity was not admitted after the death of a spouse. The dennntiatw (n) (dc peccato coinmittoido) was not directly connected with a claim of nullity, but, like the modern " oppositions," it was resorted to in order to prevent a prohibited marriage from taking place, and a judicial interdict could be pronounced accord- ingly against proceeding with the marriage till further order. The Judge could also by inquisitiopar officiuni, where the parties had no remedy available, proceed to pronounce divorce and separation. There was no time limitation applicable to actions of nullity, and the rule was consequently adopted in civil law that a judgment in a matrimonial cause never became res judicata, with certain limita- tions. Subsequently, in the fourteenth and fifteenth centuries, ■" oppositions " were recognised, but in practice were only available to a betrothed or i^erson alleging a marriage or promise of marriage with a betrothed. 4. Second Marriages and Concubinage require brief notice. In the canon law, second and subsequent marriages were allowed, with certain restrictions as to particular persons — e.g., a digamus was not admitted to holy orders; and ceremonies — i.e., the nuptial benediction was not given at second marriages of women, though it was at the marriage of a widower with a virgin. The Eastern Church, on the other hand, imposed penalties on a second marriage, did not allow in some cases third marriages, and rejected fourth marriages altogether. As already seen, concubinage was recognised in Imperial Koman legislation. The Church in early times (o), while condemning con- cubinage as an institution, yet showed a tendency to safeguard the position of a concubine who jDromised to be faithful to the man ; but the canon law finally rejected it as a legal condition, though it gave to the children of concubines kept at home (not vulgo quaesiti) rights of succession to their father, which natural children only possessed as regards their mother (jj). 5. Dispensations. — These were originally interventions by the ecclesiastical jurisdiction in particular cases, which were reserved to bishops. With the development of canon law, they became more general in character, and bytheeleventh century the Popes claimed by {n) See Lyndwood, 311. {p) See Athou, 44, 92—96, as to the (o) Councils of Toledo and Orleans. position of concuhinarii. 26 PEIXCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. this po^Yel• to override the secular law (q). The canon law, however, only allowed dispensation to be applied to ecclesiastically-made law, such as constitutions, and not to what was regarded as natural law. As regards marriage, the rule came to be adopted that in the forum externum only the Pope could dispense with impediments, whether dirimentia or prohihitiva, and bishops could only do so as his delegates. But in practice, on the ground of necessity, they were held to have such power delegated to them implicitly (if not given to them explicitly, by grants), besides having such power directly under the former general law (r). Dispensation was applicable to impediments of general incapacity, such as an impuhcs marrying on the condition that the marriage should not be consummated till later, a marriage between a Christian and an infidel, vows and holy orders (very rarely), and clandestinit}^ (though not as such); but not to impciUmenta dirimentia, based on want of consent, or impediments of natural or divine law. The most usual cases in which dispensation was granted were rela- tions existing between the parties before marriage — e.g., cognatio proper, i.e., as far as the second canonical degree, the other kinds of cognatio being dispensable but not usually dispensed in practice ; aflfinity, but never between ascendants and descendants — e.g., for collaterals in the first degree; puhlica honestas and crimen, though not for a spouse who had brought about the other's death. Dis- pensation was, however, allowed where adultery had been coupled with a promise of marriage. Prohibitive impediments were always dispensable, except be- trothals, which were imj^ediments to subsequent marriage with another person, but could be dissolved by a Court. Dispensa- tions for impedimenta dirimentia could be given before marriage, or after it, if it were null, provided that the parties had acted in good faith and there had been proclamation of banns, though this latter requirement was not essential. Such subsequent dispensations were either retrospective in effect and rendered it unnecessary to have a fresh exchange of consents, making the marriage good ah initio, known as sanatio in radiee, or they were ordinary, and did not have such effect unless by express permission — e.g., for legitimation of children. It was a necessary condition that the impediment should have been one of ecclesiastical law onl}^, and (7) Sec Athon, Ti. [r) Allion, 4L CANON LAW SINCE THE COUNCIL OF TRENT. 27 that there was an existing y a minister of the State Church or a Nonconformist minister or official, or civilly by a notary public ; marriages of Nonconformists are performed either by their ministers or civilly by a notary public, and those of persons who are not Christians by a notary public (c). {t) Friedberg, pp. 465, 466 Law), iii., 9 ; Marriage Law of Novem- (u) Ibid., 497. ber 6th, 1908, P. P. Misc., No. 2 (1894), (a) The editors are indebted to ihi(J., 144. Professor Oscar Platou, of the Uuiver- (c) Laws of June 26th, 1891 ; July sifcy of Christiania, for revision of this 27th, 1896; and June 22ud, 1863: portion. P. P. Misc., No. 2 (1894), 144, 145. (6) 1734, Giftermals Balk (Marriage 3—2 36 PEINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. In Denmark, marriage between members of the State Church must be celebrated by a minister of the Church, and marriage between Dissenters by their minister. Marriage can also be performed by a notary public, but only where the parties do not belong to the State Church or any other Church, or where they belong to different Churches (d). It may be noticed that the Church in Norway was a. daughter Church of the Church of England, and had similar laws and customs. There were similarly close relations between the Church of Denmark and the Church of England, and its position i& analogous as regards points of doctrine, ritual, and constitution (e). Germany (/'). — As bas been already indicated (_r/) , under the. primitive Germanic law the marriage ceremony was a bargain by which the father of the bride, or such other person as had power over her (muntwalt), sold that power {munt) to the bride- groom. The ceremony consisted in the delivery of the bride and the payment of the mwitgeld. It was preceded by a pre- liminary agreement in the nature of a betrothal ; but the con- sent of the bride was not originally an essential element of the bargain either in its preliminary state or on its completion. Under the influences of the Koman and canon law this became gradually modified ; the bride was more and more looked upon as a party whose consent was required. The muntgeld was applied for the- benefit of the bride. Even in that later stage the blessing of the Church was not considered necessary, though it was frequently given either to the betrothal or to the proper marriage ceremony,, or to both. When the Church assumed the jurisdiction in all matters relating to the validity of marriages, the participation of the clergy in the marriage ceremony assumed greater importance ;, but down to the decree " Tametsi " published by the Council of Trent it was never indispensable, as the Church up to that date recognised the rule derived from Roman law that the consent of the- parties was as regards sponsalid de iircesenti sufficient to constitute a valid marriage. The decree " Tametsi " did not prescribe a marriage ill cliurch ; all that was necessary was the declaration of the consent of the parties in the presence of the parish priest, or some (r/) Law of April 13tli, ISJl ; V. P. (/) Friedlieit:, Kirchenrecht.othed., Misc., No. 2 (1894), 53. pp. 441—462; Sclinitzer, Katholisi-hes (t) Church Quarterly Eeview, April, Eherecht, pp. 14o — 201. 1907, pp. 80 (i scq. [y) See pp. 10 d seq. CANON LAW IN PROTESTANT COUNTRIES. 37 other priest licensed by him, or by the ordinary and two or three other witnesses. The decree '* Tametsi," according to the view ot tlie canon law, is only binding in those parishes in which it has been fonnall}' published, and as it was never published in the Protestant districts of Germany, the pre-Tridentine law still applies to a large part of Germany. The Protestant Churches, soon after their formation, adopted rules similar to those of the canon law (/<), and accordingly the indirect effect of the decree " Tametsi " was to put an end to the pre-Tridentine form of marriage in Germany. Since 1875 civil marriage is compulsory throughout Germany, and any clergyman who (except in the case of the threatened death of one of the parties) takes part in a religious marriage ceremony without being satisfied by evidence of the previous solemnisation of a civil marriage is guilty of a criminal offence, punishable by fine or imprisonment (0- The compulsory nature of the civil marriage does not, of course, affect the law of the Churches. In the case of the Eoman Church this leads to a strange result. According to its view, persons who have gone through a civil marriage without having added a religious marriage complying with the requirements of the decree " Tametsi " are deemed to live in concubinage if the marriage was performed in a parish in which the said decree was published. If, however, they were married in a parish in which such publication did not lake place, the declarations of consent before the registrar are deemed sponsalia de pnesenti under the pre-Tridentine law, and the marriage is therefore valid. The Protestant Churches recognise the supremacy of the State as regards all matters concerning the validity of marriages ; they do not, therefore, deny the validity of civil marriages which have not been followed by any religious ceremony, but they consider persons who marry in this manner as failing in their religious duties and accordingly deserving of censure. The Dutch Republic. — The influence of the canon law in the Low Countries did not make itself felt in so direct a way as it did else- where, e.g., in England. The Church never held the same dominant position in the Legislative Councils and on the Bench. Its influence was an indirect one : in the first place through the power which the {li) The Evangelical Confessions U. Stutz. (Augsburg), &c. ; see Holtzendorff, (t) Statute of 1875, a. 67, as amended Encyc.jii., Kirchenrecht, tit. 2, passim, by Introd. Law to Civil Code, art. 46. 38 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. Church exercised over its members/ and in the second place by the guidance which it gave to the worldly powers who took over and copied the rules laid down by the Church, but made compulsory what the Church only morally enforced. Attempts were made in the Netherlands at publication of the decrees of the Council of Trent, which would not extend to any one country unless received therein (k) ; but they only succeeded in some parts of the Dutch Provinces (I). The Keformation rendered them ineffectual. The Reformed Church, however, recognising the existing evil of secret marriages, itself took the matter in hand, as far as its own members were concerned, and decreed that the celebration of a marriage could not take place unless it had been preceded by previous notice thereof to the Church authorities and publication of the banns in church on three consecutive Sundays. The Legislature, following in the footsteiDS of the Eoman Catholic Church, instituted punishments against secret marriages and marriages entered into by minors without consent of their parents, and either fined or banished the culprits or attached disabilities of a pecuniary nature to these and such like marriages (/»)• These measures remained ineffectual. They were not compul- sory, and the prospect of future penalties which did not affect the validity of the marriage was insufficient to deter persons who wanted secrecy from following their own inclinations, or to induce those who did not belong to the Eeformed Church to enter its doors for the sake only of going through the ceremony of marriage. The inadequacy of these measures led the Province of Holland to take legislative action making the prescribed forms obligatory and essential elements of a valid marriage. After some local legislation in 1576 by the liaJjKir ni dhihiuh (Bailiff and men) of Piynland (»), the States of Holland provided in their Ordinance of Policy (April 1st, 1580, pars. 1-13) a set (o) of rules for the whole of the Province. In the first place persons who had already been joined together {k) Cf. p. 27. {ti) Fock. Aiidr., ibid., ii., 130—140; (/)Fock. An(lr.,ljijdiageii,i.,72, n. 1. Bijdragen, i., 127 — 129. (to) Fock. Andr., Het Oud Ned. (o) Fock. Aiidr., Bijdrageu, i., 129 B. E., ii., 138, and the Jhjdiagen et scq. ; Het Oud Ned. B. R.. ii., 140 quoted there. et scq. CANON LAW IN PROTESTANT COUNTRIES. 39 in matrimon}^ — whether in church or liefore any other pubHc authority or without any such ceremony — were recognised as having been vahdly married, unless any objection on the ground of prohibited relationship could have rendered and would render such marriage a matrimonium diiimendvm (p). Persons who wanted to marry after the publication of the Ordinance were required to give notice thereof, either to the magis- trate of their place of residence, or to the Church authorities (q), and have the banns published by either of these officials on three consecutive market-days or Sundays. If no objection were raised against the marriage, the celebration of it had to take place before the magistrates or in church in accordance with the ordinances which were generally used in the churches (r). Penalties were imposed for non-observance of these rules, and any marriage which was not entered into in the prescribed manner was declared null and invalid, and not to be tolerated (s). The formula used by the magistrates for the solemnisation of the marriage was the same as the one used by the Church ; but after the parties had declared their will to take each other as husband and wife, no further ceremony followed. The " giving away " of the bride was abandoned, and a short benediction by the magistrate brought the marriage ceremony to an end (t). This has practically remained the law in the Province of Holland as far as the formalities are concerned which were deemed necessary to constitute a valid marriage. The betrothal {sponsalia per verba de fuiuro) followed by notice to the proper authorities of the intended marriage (the National Synod demanded that these in like manner as the sponsaJia per verba de prcesenti should be made in the presence of witnesses) formed the first of the prescribed ceremonies; then came the banns, and lastly the marriage was concluded by its celebration before the magistrates or in the church. Subsequent legislation was introduced in order to smooth the practical working of these provisions and admit of their modifica- tion in the case of members of certain religious sects other than ( p) Art. 2. (r) Art. 3. ((/"> Sjjonsaliaj^cr verba deprceseitti, as (s) Art. 13. theNationalSjniod of 1578 prescribed; (<) Fock. Audr., Bijdrageu, i., 130 Pock. Audr., Bijdragen, i., 130, u. 2. et seq. ; Het Oud Ned. B. K., ii., 141. 40 PRINCIPAL ORIGINAL SYSTEMS OF MARRIACxE LAW. those which formed part of the Reformed or Roman Catholic Church (h). Similar formalities were adopted in the other provinces. Where it was not required that notice of the intended marriage should be given in solemn form and in public, the sponsaUa per verba de puesenti took place before the proper authorities after the publica- tion of the banns, and, in fact, constituted the marriage ceremony (,r). The subsequent benediction did not add to the binding character of the solemn declaration by the two parties to take each other as husband and wife, which had immediately preceded it {x). The consensus of the parties declared in a public manner before certain public authorities constituted a valid marriage 0/). It was not everywhere, however, that the coneuhitus was thus super- seded and rendered unnecessary to constitute a valid marriage. In FriesLand consummation of the marriage was considered essential, while in the Provinces of Groningen and Utrecht marriages entered into by the parties merely living together without ceremony seem to have been recognised {z). lY. Canon Law in United Kingdom and United States. England. — Before the official compilations of the general law of the Church, recognised under the title ot Corpus juris C(nu);a'f/, were made, the law of the English Church was authoritatively declared by Church Councils, developed bj' custom, and influenced by the civil legislature and executive. After that time there was a long succession of English provincial canons issued by the Archbishops of Canterbury and occasional Papal Legates, from 1222 (Council of Oxford) to 1415. In consequence of the Norman Conquest the English Church was brought into closer connection with the general Church law recog- nised in the different Continental countries at a time when that law, similarly derived from custom and practice, was taking a codified form, and receiving a general recognition ; and the systematised canon law came to be regarded in England, as elsewhere, as the standard of doctrine and practice to be complied with so far as was (») Fock. Aiuh-., Bijdrageii, i., 130 — {y) V. d.Keessel, Thes.Sel., Thes. ST. 132. (z) Fock. Aiidr., Bijdrageii, i., 84— (x) Fock. Andr., Ilet Oud Ned. 86, 91—96. 120—121; U. Huber, B. E., ii., 141 — 144; van Leouweii, Ileilend. Regtsgel., i., 5, pars. 4, 9, 10, Cens. For., I., 1, ii., 2; II. Bruuwer, 21, 24, 2.'). de Juro Conn., I., 2, 4—6. CANON LAW IN ENGLAND. 41 consistent with local custom and the temporal laws. But there was no express and general acceptance of the canon law as a whole. The commentaries of William Lyndwood (1375 — 1-446) and John of Athon (died 1350) {a) upon the constitutions of the Archhishops of Canterhur}' and the canons enacted in the Councils held hy the Papal Legates Otho and Othobon have always been treated by English lawyers as giving the authoritative texts of English Church law ; and these were accepted as the general law for the whole of England upon their recognition by the Province of York, in 1462. Lyndwood's "Provinciale" contains abundant references to the general canon law and civil law, which are often compared together, and many allusions to the practice of the English Church, -where this was not in accordance with these laws (h). Different views have been taken of the extent to which the general Church law, referred to in these commentaries, was actually part of the law of the English Church. The reports of the two Royal Com- missions on the English Ecclesiastical Courts, in 1833 and 1883 respectively, proceed in varying degrees on the lines both previously and subsequently laid down by the Courts (c), that the canon law exercised a controlling influence as an expression of the doctrine of the Catholic Church in England as in the Continental countries, but that its effect was always in the last resort subordinate to the common law and liable to restriction by the jurisdiction of the common law Courts, and that onl}' such portions of it as were not repugnant to {«) Athon (also called Acton) dis- (r) See Phillimore, Eccles. Law, i., tinguishes various kinds of constitu- c. 4. It may be stated that in an tions, General and Papal, Legatine, article, entitled " National Churclies and Provincial, and states that lie does and Papal Decrees," by Mr. J. Arthur not intend to quote the last named Price, publislied in the Church Times kind, as being neither imiversal nor Newspaper, March 2()th, 1909, an uniform in all parts of the country examination is made of the details of covered by the Legation (5), for his the trial of Dame Alice Kyteler, who work would be thereby made liable was prosecuted for soi'cery before the to bo considered less authoritative, Bishop of Ossory's Court in Ireland thoughby others it would be considered in 1324, to show that Professor Mait- as accepted; and see, generally, 13, land's theory is not altogether borne 14, 23, 30, 53, 84, 85, 91, 94. out by the practice of the Irish {h) See pp. 212, 213, 228, 246, 248, Ecclesiastical Courts. Dame Alice 256, 259, 266, 356, as also does Athon's Kyteler's trial is described in a con- Commentary on the Constitutions of temporar)' chronicle printed in the Otho and Othobon : see pp. 37, 43, 103, Camden Society's publications, No. 24. 108, 113, 123, 127, 128, 141. 42 PEINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. the common law or were in accordance with the local habits and customs of the country were regarded as having the force of law here for spiritual purposes. Another view, which is supported by the great authority of the late Professor Maitland, in a work issued as lately as 1898, was that the whole of the canon law as the official law of the Catholic Church governed the English Church and was strictly l)inding on the Ecclesiastical Courts, and that the limitations upon its full sovereign application imposed by the civil power only modified its spiritual supremacy for civil purposes(c7). The practical result however, whichever view is adopted, is much the same. It has been stated, so long ago as 1720, that "the statute 25 Henry VIII. c. 19, providing that ' the canons, constitutions, ordinances and synodals provincial already made which are not contrariant nor repugnant to the law statutes and customs of the realm nor to the damage or hurt of the king's prerogative royal, should be used and executed as before,' was understood to refer not only to these constitutions which were consistent with the statute law and prerogative royal, but even to so much of the Pope's common law as was here commonly received — so the Lateran canon against pluralities was of as great force in the Temporal Courts as an Act of Parliament. What part of the canon law was received in England and the manner of putting that and our domestic constitutions in force is to be learned from Lyndwood, for by the common consent of lawyers what he delivers as the canon law of this Church is so to this day (1720), except where it is annulled by statute, and the Legatine constitutions of Otho (1236) and Othobon (1268) are to be reckoned among our domestic consti- tutions " {e). In support of the theory of the limited and partial acceptance only of the general canon law may also be cited the recent decisions of the Judicial Committee of the Privy Council with regard to the ritual allowed by the law of the English Church, to the effect that actual practice must be shown as well as the provisions of the general law which were recognised as valid, when any such preserving statute, as that quoted above, was passed, in order to make a particular ritual or ceremony part of the present law. A notable example of a possible difference between English canon law and the general canon law is afforded by the case of K. v. Millis, where the House of Loids was equally divided in opinion whether the presence ((() Sec vol. i., p. i;i. (<) Johnson, C'anont; of the Church, xxix. CANON LAW IN ENGLAND. 43 of a priest was necessary for a marriage under the canon law or ecclesiastical law of England, when it was not necessary to the validity of a marriage under the general law of the Western Church previouslj' to the decree of the Council of Trent, It is submitted that, putting it at its highest, the position of the canon law for ecclesiastical purposes in this country before the Eeformation is analogous to the position for civil purposes assigned to the common law of England in any country to which it has been transplanted, such as a British Colony or in any of the United States at the present day, in which case it is recognised as being liable to the limitations appropriate to the circumstances of the j^articular country and subject to the general effect of the local conditions and subsequent statutes. Temporal legislation in ecclesiastical matters was, before the Reformation as after it, recognised as legitimate and controlling — and the temporal arm has always been required to enforce ecclesiastical laws and decrees (/). Examples of such legis- lation are afforded by the Constitutions of Clarendon (1164) and the Statutes of Provisors (1351, 1368, 1391). The position of the Church of England with regard to the sources of its law has been authoritatively declared to be that, while she has adhered in all matters of importance to the general principles of the Eastern and "Western Churches, yet that, before and since the Reformation, she has claimed the right of an independent Church in an independent kingdom to be governed by the laws which she has thought it expedient to adopt (r/). Instances of the exercise by the Church of legislation and juris- diction concerning marriage after the Reformation are to be found in Archbishop Parker's Admonition, settling disputed questions as to affinity, and the canonical regulation of marriage and matrimonial causes effected by the Provincial Synod of Canterbury in 1585, 1597, and 1604. The existing Ecclesiastical Courts in England w^ere also left in possession of their former jurisdiction, and down to the passing of Lord Hardwicke's Act in 1753 (/<), to prevent clandestine (/) See Lyndwood, 264, 351. Eeformatio Legum Ecclesiasticarum, [(j) Philliuiore, Eccles. Law, i., 11. in Latin: Encyc. Brit, vi.^ 551, tit. Archbishop Cranmer undertook the Canon Law ; Cambridge Mod. Hist., codification of the canon law, and the vol. ii., pp. 508, 589. work, which was never authorised, was (A) 26 Geo. II. c. 33. published in 1571, under the title of 44 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. marriages, they continued to apply the former generally accepted law (i). After that date the Ecclesiastical Courts retained disciplinai-y jurisdiction over laymen for offences which required correction pro salute anima' — such as fornication and incontinence — until this was limited hy statute in 1786 (/.) ; and power to punish for incest has been recognised in recent decisions (/). Scotland. — The canon law exercised wide influence in Scotland prior to the Reformation ; and the modern Scots law as to putative marriage, as to the constitution of marriage per verba de priesenti or per verba de fiitiiro cum subsequente copida, and by cohabitation and habit and repute (??i)> ^^^ ^-s to the dissolution of marriage (7t), is directly borrowed from it. The prohibited degrees recognised by the old consistorial law in Scotland were the same as those pre- scribed by the canon law (/»)• They can scarcely be said, however, to have been adopted strictly by the Scotch Courts from that system, as they were made the subject of express enactment by the Pro- vincial Courts of 1242. And the better oi)inion seems to be that, although one of ihe fontes juris Scotice, the canon law was never of itself authoritative in Scotland. In the canons of her national Provincial Councils, Scotland possessed a canon law of her own, which was recognised by the Parliament and the Popes, and enforced {i) The Act directly deprived the though no decision was given as to the Ecclesiastical Courta of jurisdiction to other elements of clandestinity corn- compel a celebration of any marriage plained of in the case — namely, marry- 171 /(trie fccJtsicn by reason of any con- ing without licence or banns and in a tract of matrimony, whether ]iei- verba private house. de prctsfuli u\ per verhit de futxro ; huiit [k) 27 Geo. III. c. 44, by which no did not apply to marriages of the Royal proceedings are to be bi'ought after Family', or between Quakers or Jews, eight months after the oH'ence, nor for nor did it extend to Scotland or fornication after the marriage of the bej^ond seas. In 17o() a prohibition parties. was granted by the King's Bench to (/) See Phillimore, Eccles. Law, ii., an I'jcclesiastical Court for proceeding chapters 1 and 12. upon articles against a man and his (»«) Encyclo. Scots Law, tit. Canon wife for being married out of canonical Law. hours (t'.f., not between 8 and 12 a.m.), (w) Collins v. Collins (1884), per tliat being a circumntanco introduced J-ord Watson, 9 A. C, at j)p. 244 by the canons of l(>();i, which were not et seq. ; and 1 1 Rettie (II. L.), at p. ;}() ; binding on the laity as not having and see chapters III., j)p. 190—19;}, received Parliamentary sanction and XVI., i)p. 8jG, 857, T^os^. (,Middleton v. Crofts, 2 Atk. 650), LAW OF IRELAND. 45 by the Courts of law ; and the general canon law, while entitled to high regard as ratio scripta, was only part of the law of Scotland in 80 far as it had been expressly allowed by statute or custom, or incorporated in the decrees or acts of the Provincial Courts (o). Many of the rules of the canon law, which were adopted by the old Consistorial Courts, were largely modified at the Reformation. Thus divorce a vinculo was allowed ; the eighteenth chapter of Leviticus was adopted as the law determining the degrees of relationship within which marriage should be legal ; and several of the fictions of the canon law% resorted to for the purpose of creating an apparent reconciliation between equity and law, were abandoned. The Reformers, however, though they overturned all the Roman Consis- torial Courts, enacted no new Consistorial Code, contenting them- selves merely with declaring null all laws contrary to their religion. " In all other respects the national canon law of Scotland was left untouched ; and though several of its principles have since been altered or modified it still remains the basis of the Scottish consistorial law " (p). Ireland. — In the case of Ireland the position of the Church of Ireland (now disestablished) with regard to this subject was put on the same footing as the Church of England by corresponding legis- lation of Henry YIIL, which expressly preserved " the ceremonies, uses, and other laudable and politic ordinances for discij^line and decent order theretofore in that Church used, instituted, taken and accepted," and provided that " all canons, constitutions, ordinances, and synodals provincial, already made for the direction and order of spiritual and ecclesiastical causes, which were not contrariant nor repugnant lo the king's laws, statutes, and customs of the land, nor to the damage or hurt of the king's prerogative shall continue in force till ordered or determined otherwise " (q). "Wales iqq). — The tenacity with which the Welsh clung to their own customs in the matter of marriage, many centuries even after the {(i) Frasei", Husband and Wife, pp. Courts had expressly declared it other- 28 et seq., and authorities, ad loc. cit. ; wise. per contra Lord Stowell, who held in [p) Eucyclo. Scots Law, tit. Canon Dalryinple v. Dalrymple (1811), 2 Law. Hagg. C. R., at p. 81, that the Eoman () Henriques, 49— 52. (/)) 41 & 42 Vict. c. 43. {(j) De "Wilton v. Moutetiore, [1900] (c) Meetings of the Society were 2C'h. 481. first established about 1650. The (a) This account is derived from earliest marriage certificate known to information supplied bj' Mr. J. I.istcr exist is dated 1666. Godlee, of that Society. MARRIAGES OF SOCIETY OF FRIENDS. 53 the usages of the Society of Friends, the vaUdity of a marriage does not depend on the observance of the regulations of any meeting of the Society. There are not any recognised meetings having power to deal with marriages in the other British Colonies. In the case of marriage between a member of the London Yearly Meeting and a member of a meeting recognised by the Yearly Meeting on the American continent or in the Southern Hemisphere or elsewhere abroad, within the limits of any such meeting the first-named member is at liberty to conform to the usages of such meeting. In the case of marriage between members of the London Yearly Meeting resident abroad to be solemnised abroad and beyond the limits of any meeting recognised by the Yearly Meeting, the usages of the Society are recommended for observance as far as compatible with the law of the country and Enghsh law, e.g., 4 Geo. IV. c. 91, 12 & 13 Vict. c. 68, and 14 & 15 Vict. c. 40 (India). Marriage is regarded as a religious act and not a mere civil con- tract, and the ceremony is a solemn contract made in facie eccUsice by mutual declaration of the parties evidenced by a certificate in writing signed on the spot. In England it is registered in special registers by a special officer in a monthly meeting, and in the Colonies it is subject to the general statutory requirements of regis- tration of marriage. Marriage of Friends before a civil officer is regarded as inconsistent with the discipline of the Society, and the Society does not allow marriages which offend against the law of the State, e.g., as to prohibited degrees. The preliminaries of marriage include a notice of intention, in the nature of a publication of banns, and notice to the proper civil officer. The parties must be liberated by the meeting to which the woman belongs as represented by its clerk and overseer ; and if they refuse to grant this permission or even without their having con- sidered it or refused it, the meeting itself may do so. The consent of parents, not only in the case of minors, is required, but this may be waived by the monthly meeting. The marriage must be solemnised at a meeting for worship held in any meeting house, after due notice given there, without regard to the residence of the parties, provided the meeting house be one in which meeting for worship is regularly held ; and meeting houses need not be registered for the solemnisa- tion of marriage. Marriages in accordance with the usages of the Society may be solemnised between persons one or both of whom 54 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. is or are not members of the Society, with certain additional pre- liminaries, e.g., permission from a monthly meeting ; but such marriages do not confer membership on the contracting parties or their children. Marriages of members of a monthly meeting not in accordance with Friends' usages are discouraged, but when con- tracted are registered with the meeting of the parties. SECTION IV. The Canon Law of the Eastern Church. The canon law of the Eastern or Greek Church requires separate notice from that of the Western Latin Church. Starting from a common origin in the decrees of the early general councils of the whole Church, and the writings of the early Fathers, its law became codified at an earlier date ; and after the separation of the main Greek and Latin branches of the Church in the eighth century, which became definite in the eleventh century, except for the nominal reconciliation attempted in 1274 — 1277 and 1438 — 1440, the systems of these Churches became divergent as regards their organisation and governing laws. The Eastern Church admitted the princii^le of decentralisation and the formation of difi'erent branches for the nationalities and countries where it had spiritual supremacy, with an indej)endent organisation for each branch, though the whole recognised a unity of faith and dogma. The Orthodox branch, which admitted the supremacy of the Patriarchate of Constanti- nople, has always occupied the leading position, partly as the Mother Church from which the others were originally derived, and partly from its official connection with the Greek Empire, a position which it has retained under its successor, the Turkish Empire. Besides the Orthodox Eastern Church, there are also the Separated and the Uniate Eastern Churches. I. Orthodox Eastern Church. — The Orthodox comprises : (a) the Patriarchates of Constantinople ; (b) Alexandria ; (c) Antioch ; and (d) Jerusalem ; (e) the Churches of Russia ; (f) Cyprus ; (g) Car- lowitz, Serb Orthodox, in Hungary ; (h) Czernagora (Montenegro) ; (i) Mount Sinai ; (j) Greece ; (k) Hermannstadt, Roumanian Orthodox, in Hungary ; (1) Bulgaria; (m) Czernowitz, for the Grand Duchy of the Bukowina and Dalmatia, partly Serb and partly Roumanian, in Austria ; (n) Servia ; (o) Roumania ; (p) Herzegovina OllTHODOX EASTERN CHURCH. 55 and Bosnia (d). All these are in communion with each other, except for some modern schisms, e.g., Bulgaria and Constanti- nople, and with the CKcumenical Patriarch of Constantinople (e). The various collections of the law of the Orthodox Church are exhaustively set oat in Bishop Milasch's authoritative compilation of the law of the Eastern Church. It is sufficient for the present purpose to say that the authorities generally recognised by the whole Church are : (1) the Nomocanon in XIV. Titles of 883, containing the canons of the Apostles, the earliest collection of Church law extant, the canons of the seven Oecumenical Councils and of the ten Particular Synods, and of the thirteen Holy Fathers {/) ; (2) the Greek compilation of canons, of which the collection known as the Pedalion ((/), compiled in the eighteenth century and published in 1800 and 1845 with the approval of the Synod of Constantinople, is regarded as the official authority for the Greek-si^eaking Church ; (3) the Slav collection of canons, known as the " Kormtchaya Kniga " (thirteenth century), officially adopted in Kussia, Servia and Bulgaria and by the Orthodox Serbs, and the Kormtchaya pravil (nineteenth century) in Kussia; and (4) the "Pravile cee mare " or "Indreptaria legii " (seventeenth century), the official collection for the Orthodox Koumanian Church, which also uses the Pedalion. The most comprehensive work on the whole subject is the Athenian Syntagma (1852—1859) {h). The different Particular Churches have also their individual special governing laws, recognised by or dependent on the civil law (i). The general law of the Eastern Orthodox Church as regards marriage may be considered under the heads of (1) the require- ments ; (2) the impediments. Eequirements. — The requirements are : (a) mutual consent ; (b) sufficient age, with regard to which the Church formerly followed the civil law, and now follow's the different State laws, e.g., for both parties in Austria, fourteen ; for husband and wife in Hungary, {d) Fortescue. Eastern Churches, 21. the general subject. The editors are (e) See The Church of Cyprus, by also indebted to the Rev. W. Sadler for Eev. H. T. F. Duckworth (1900), revision of this section. S. P. C. K., London ; The Orthodox (/) Milasch, 79, 183. Church in Austria-Hungary, I., (j/) Ibid., 190. Hermannstadt, by Miss M. G. Dam- (h) Ibid., SO, 200. pier (1905), Eivingtons, London, who (/) Ibid., 131 — 157. has also given valuable information on 56 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. eighteen and sixteen ; Servia, seventeen and fifteen ; Russia, eighteen and sixteen ; Greece, eighteen and fourteen ; Bulgaria, nineteen and seventeen ; Montenegro, seventeen and fifteen, the three last being regulated by decrees of the Synods ; and marriage is prohibited between a man of seventy and a woman of sixty, and in Servia and Piussia a man of fifty and a woman of forty marrying for the first time must obtain the consent of the ecclesiastical authority; (c) mental capacity; (d) capacity to fulfil conjugal duties ; and (e) the consent of persons to whose parental power the intending parties are subject. In this last respect the civil law was followed and the consent of the paterfamilias was required for the marriage of children alieni ^furis and daughters sui juris in certain cases ; but a judicial authorisation superseded the need for the parental consent (A). In the Eastern Church marriage has always been treated as a sacrament, but two kinds of betrothal were recognised : one ecclesi- astical, which was equivalent to marriage, if performed with the Church's benediction, and the other civil, which could be entered into at the age of seven years, but was dissoluble. The difference between ecclesiastical betrothal and marriage is not now of practical importance, as the betrothal is directed to take place at the same time as the marriage ceremony. Civil betrothal does not control an obligation to contract marriage and has no civil consequences. Other requirements are an examination of the parties by the priest, who has to investigate whether there is any civil impedi- ment to the union and also to satisfy himself that the parties hold proper Christian doctrine. Banns or notice of the intended marriage are also now required in most of the Churches, except in the Patriarchates. In the Slav Orthodox the Kormtchaya requires the marriage to take place within two months of the banns. Certain times for marriage are prohibited by the Church, e.g., November 14th to January 6th ; Lent and until the first Sunday after Easter ; certain fast and festival days, and Wednesdays and Fridays throughout the year. But a marriage on a prohibited day is valid so far as not inconsistent with the legal requirements of marriage. {k) Esmoin, i., 1(50, Ifil ; Milasch, 580. ORTHODOX CANON LAW — IMPEDIMENTS. 57 The marriage ceremony must l)e i^ublic and before witnesses, and a clandestine marriage is void. The place must be one within the jurisdiction of the proper priest of the parties, and the marriage benediction is only rarely given out of church, and the time must not be after evening or at night. There must be two witnesses, of age and qualified as judicial witnesses, not women ; and no ceremony is recognised as legal other than the priestly benediction. Impediments. — The impediments are classified as absolute and relative, i.e., for certain persons only. Absohite. — The absolute ones include (1) destructive and (2) hindering impediments. The former class, which does not admit of a lawful marriage taking place or renders it null if contracted, comprises: (a) abnormal mental capacity ; (b) impotence for marital duties ; (c) want of con- sent of persons having parental power over the parties ; (d) a lawful existing marriage ; (e) pregnancy of the bride ; (f) religious vows of chastity ; (g) a third widowhood ; (h) higher orders (/). Candidates for ordination to the priesthood, in answer to a call to a secular charge, may be married, but after ordination sub- deacons (though not universally), deacons, and priests are not allowed to marry again so long as they remain in orders. This rule is akin to the law forbidding the ordination of digamists, i.e., of men who have married a second time. Bishops are generally appointed only from the monks On), and a person aspiring to that order must leave his family and become a monk. In practice when an Eastern priest marries again, though the marriage is not annulled, he is degraded from the priesthood. The hindering impediments, which do not make a marriage already contracted null, but illicit only, are : (a) want of requisite age, but this impediment ceases when the right age is reached if the parties continue to be of the same mind and the other requisites are fulfilled ; (b) marriage at a prohibited time, which impediment ceases if the proper Church authority confirms the marriage ; (c) force and fear ; (d) deceit ; (e) a betrothal made by the Church, but, as above explained, this has now no practical importance ; (f) actions (/) Milasch, 266, 267. exceptious. See Mila.sch, 266 — 268, (m) E.;/., in the Jerusalem Patri- 598. archate and Russia, but there are 58 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. by one betrothed partj^ which are prejudicial to the life of the other ; (g) condemnation and imprisonment for a crime ; (h) the annus luctus ; (i) military service ; (j) want of publication of banns ; (k) want of requisite documents. Relative. — These impediments are those of relationship and others. Pielationship may be by blood, affinity, spiritualit}*, betrothal or adoption. The method of reckoning degrees in the Eastern Church has been already referred to — viz., in the direct line one degree for each generation between two persons ; in the collateral line one degree for each generation up to the common ancestor and down to the other party, e.g., brothers and sisters are in the second degree, uncle and niece in the third, first cousins in the fourth, second cousins in the sixth, and third cousins in the eighth. The Eastern Church adopted the rules in force in the Greek Empire. Between ascendants and descendants all marriages are forbidden. In the collateral line according to the common canon law marriage within the seventh degree is forbidden, and is only allowed between blood relations of the eighth degree ; but in Greece and Russia the prohibition is limited to the sixth and fourth degrees respectively. In aftinity, i.e., the relation created by a single marriage between two families (6tyej; eta), the same reckoning is followed as in blood relationship. The blood relations of one spouse are in aflinity with the other. The principle of the prohibition in the Eastern Church is that such marriage is only allowed so far as confusion of names does not result. In the direct line marriage is forbidden altogether. In the collateral line the prohibition extends as far as the fifth degree inclusive, and marriage is only allowed in the sixth and seventh degrees if no confusion of names will result. The Church also recognises affinity by two distinct marriages between three families (rptyereta), and the same method of reckoning degrees is followed as in the preceding kind. The prohibition extended as far as the third degree. In spiritual relationship tlie prohibition was extended to the same extent as blood relationship collaterally, but the present rule con- lines it to the third degree, as between the baptised person and the godfather receiving him or her in baptism, and the mother of the child and descendants of the godparent and godchild. In affinity by betrothal there is a prohibition of marriage between either of tlie parties and relations within the second degree of the other. ORTHODOX CANON LAW — EFFECT OF IMPEDIMENTS. 59 In adoption relationship is created between the adoptive father and his relatives on the one side, and the adoptive son and his relatives on the other. The prohibition extends to the same extent as in spiritual relationship, and the degrees are similarly reckoned. Other relative impediments are : (a) ravishment ; (b) adultery ; (c) incitement to dissolution of marriage ; (d) guardianship ; (e) difference of religion between Christians and non-Christians, which is made the rule of civil law in such States as Austria and Servia. The Effect of Impediments. — Marriages which have been contracted subject to a legal impediment are generally designated as unlawful. These are again distinguished as prohibited (a^e/xtrot), contrary to law {-napavoixoi) , and condemned {naTaKpnoC), all of which marriages must be dissolved. Such a dissolution is absolute when concerned with a destructive impediment, but if the impediment is only hinder- ing the declaration of invalidity is only relative, and in the latter case the marriage is suspended till the impediment is removed. Destructive impediments are : (1) lawful existing marriage ; (2) pregnancy of the bride ; (3) higher orders ; (4) vows of celibacy ; (5) fourth marriage ; (6) blood relationship up to and including the fourth degree in the sense of Canon 54 of the Council of Trullo ; (7) affinity up to the same degree ; (8) affinity through two marriages between three families up to the first degree ; (9) spiritual relation- ship up to and including the second degree in the sense of Canon 53 of the Council of Trullo ; (10) adultery ; (11) guardianship. Such marriages can be declared null either by a proper authority ex officio, or on the application of a spouse. Destructive imj)ediments cannot be overcome except by an authority which has power to regulate them, ^e., a General Council, or the authority which generally represents such a Council. Hindering impediments which are not prescribed by an (Ecume- nical Council, but are regulated by ecclesiastical authorities as an extension of a fundamental law according to circumstances of j)lace and time, can be dispensed with by a bishop, or the marriage already contracted which is subject to them can be similarly confirmed ; but if the hindering impediment is imposed by civil law, the civil authority can similarly dispense or confirm. Irregular Marriages. — The regular marriage is a first marriage. A second marriage, according to the canons, entails penance, and 60 VRIXCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. there is a different ceremony, and dicjami are not admitted to higher orders. A third marriage incurs a similar penalty, and fourth marriage is prohibited. Mixed marriages are allowed between Orthodox and other Christians, but the Church has always dis- favoured them, and only allows them on condition that the Orthodox character of the family, at least as regards existing persons, is maintained, and the children are brought up in the doctrine of the Orthodox Church. A difference was made between marriage of Orthodox persons and heretics and that of Orthodox and schis- matics ; the former was prohibited, and as regards the latter, though treated as one to be hindered in every way, if this is impracticable then it is required that the endeavour should be made to make the schismatic party accept the Orthodox belief, and failing this that he should undertake in writing not to hinder the continuance of Orthodox belief and custom in families, and that the children shall be brought up in the spirit of the Orthodox Church. Mixed marriages are dealt with by the legislation of the particular States, such as Austria and Greece. The Church jurisprudence recognises as fully canonical marriages a marriage performed according to Church ordinances, such as a morganatic marriage, and an " axiomatic " marriage, i.e., a marriage between a provincial governor or his son and a woman of the pro- vince during his tenure of office ; as valid, after fulfilling prescribed requirements or removing an impediment, a marriage performed by jDrocuration when the parties have afterwards gone through the marriage ceremonj^, and putative marriages ; but not secret marriages, i.e., without banns and in a concealed place, though before a priest and two witnesses ; nor civil marriage. Application of Orthodox Canon Law in Particular Churches. ^In the countries embraced within the Particular Churches above mentioned the general law of the Church governs its adherents with regard to marriage, and Ecclesiastical Courts and Synods exercise jurisdiction over it. As regards Austria-Hungary the law of the Orthodox Church on marriage has only civil effect (as also has that of the Roman Catholic Church) in Croatia, Slavonia, Bosnia, and Herzegovina, where those Churches retain their own Eccle- siastical Courts for questions of marriage and divorce ; and in ])Osnia no civil marriage is recognised. In (Ireece the Ecclesiastical Courts have only ])riiiiiiry jurisdiction with a recourse over to ORTHODOX CANON LAW IN PARTICULAR CHURCHES. 61 the Civil Courts ; and in Eoumania the Civil Courts have sole jurisdiction. A common feature in the procedure is the appoint- ment of a representative before the tribunal to uphold the validity of the marriage (»). In States where the Orthodox is not the official religion, the canon law has only the force of a " confessional " system. In countries where the Eastern Church is regarded as the State Church, such as Kussia, Greece, Roumania, Servia, Montenegro,, Bulgaria, &c., the marriage status has preserved its ecclesiastical character more definitely than elsewhere. Of these Eussia may be taken as an example. In Kussia (/(/(), the Church at first recognised the ecclesiastical jurisdiction of Constantinople, but the independence of the Moscow Metropolitanate was established in the fifteenth century, the Patriarchate was established in the sixteenth century, and its organisation was placed on a State basis by Peter the Great. Numerically it is far the largest branch of the Orthodox. The Orthodox Churches of Poland and Little Piussia were reunited to it in the seventeenth century after a separation of more than two hundred years, and in the nineteenth century the Uniate Church was incorporated in it. Since the introduction of Christianity in the year 988, marriage has been solemnised according to the ritual of the Eastern Church, and the canonical laws of that Church are collected in the Code known as the " Kormtchaya Kniga," and have been applied generally to all matters connected with matrimony. The lay authorities did not interfere at all in that domain of the national life, and without exception all questions connected with. marriage were decided by the Church. This state of things con- tinued up to the beginning of the eighteenth century, when the principle was firmly established that the Russian Tsar, as a Christian monarch, is the sovereign protector and guardian of the Orthodox Church in Russia. The Tsar, Peter the Great, was the first monarch who laid down the principle of interference of lay power in matrimonial affairs. He introduced important additions and changes into the canonical laws of the Kormtchaya Kniga, and his successors continued the policy which he had begun. All these new laws were in the nineteenth century collected {n) Milasch, 486. buted by Dr. David Soskice, of the Bar [nn) This accuuut is chiefly coutri- of the High Court of St. Petersburg. 62 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. together and formed a separate part of the Code of civil laws, divided into 118 articles, bearing the title "On Matrimonial Union." The subservient position in which the Eussian Church was placed from the beginning of the eighteenth century was naturally also reflected in the procedure followed in questions concerning the relations of spouses. One class of these questions, namely, offences against matrimonial union, or mutual jDersonal and property rights of husband and wife, as well as of their children, arising from legal marriage, were subjected to the jurisdiction of the civil law Courts, though in many of these questions a previous decision of the Ecclesiastical Courts was -required. In spite of this fact marriage is considered exclusively as a sacrament, and therefore civil marriage is entirely excluded, not only for members of the Orthodox Church, but also those of any other Churches or religions, either Eussian subjects or foreigners, celebrated in Eussia. A marriage in Eussia between persons of the Christian faith is recognised as legal by Eussian law only when celebrated according to the canonical laws and rites of that Church to which the con- tracting parties belong. If one of the two belong to the Orthodox Church, the marriage must be celebrated in that Church by an Orthodox priest, and the children born from such a marriage must be baptised into the Orthodox religion. The law forbids even the acceptance of petitions from the contracting parties praying for the avoidance of that rule. A marriage between two persons of a non-Christian religion, not excluding even pagans, must be cele- brated according to the rites or laws of their own Church, or according to their own established customs, without any inter- ference of the civil or ecclesiastical authorities, and marriages so concluded are recognised as legal. Marriage of a person belonging either to the Orthodox or Eoman Church with a non-Christian is entirely forbidden ; but members of the Protestant Church are permitted to contract marriage with Jews or Miihammadans, or followers of any other non- Christian religions except pagans, and such marriages are solemnised according to the laws established for the Evangelical Lutheran Church in Eussia. Special statutory provision is made for registering marriages of Eussian Noncon- formists, which thus obtain legal recognition (o). In the Orthodox Church, parish priests are generally married before ordination, and (o) Heard, The Russian Church, 24. EASTERN CANON LAW — THE SEPARATED CHURCHES. 63 cannot marry or re-marry afterwards, nor may their widows. Second and third marriages are not favoured, but are allowed, but fourth marriages are forbidden (p). The Holy Synod has supreme jurisdiction over marriage and divorce, and Diocesan Courts exercise jurisdiction in first instance ((/). II. The Separated Churches are the Nestorian, which separated after the Council of Ephesus (431) ; the East Syrian or Jacobite ; the Coptic (in Egypt) ; the Armenian and the Abyssinian, which separated themselves after the Council of Chalcedon in 451, and the Malabar Christian, which was originally Nestorian. The Coptic Church follows generally the law of the whole Eastern Church, but slight variations have arisen with lapse of time in the custom and practice, e.g., in the age for marriage ; the age recog- nised by the Church till recently was eighteen for a man and twelve for a woman, but is now twenty and sixteen respectively. As regards the marriage of persons in Holy Orders, bishops are chosen from monks, who may, however, be widowers ; priests must marry before ordination, and prospective priests can only marry virgins, and widower priests cannot re-marry. As regards degrees of relationship, marriage between cousins is not uncommon {(jq). The Armenian Church similarly follows the general law of the Eastern Church as regards marriage of secular priests and the pro- hibited degrees, and Diocesan Courts decide questions as to validity of marriages. The official head of the Church recognised in Turkish dominions is the Armenian Patriarch at Constantinople, but the Russian Government and the Church generally consider as Primate the Catholicos Patriarch of Etchmiadzine, whose supremacy has been acknowledged by the Patriarchs of Jerusalem and Con- stantinople (r). Secular priests are allowed to marry before ordination, and bishops are chosen from the monastic orders. (jj) Heard, _2wsstm, Eomanofl, and a Lutheran as a matter of course. jmssim, and Milasch., 267. This is in contrast with the English {q) In Eussia Orthodox marriage law as it was before the passing of the laws have never been imposed on the recent statute, under which all denomi- non-Orthodox inhabitants of the nations had to submit to the law of Empire. The marriage laws of each the Anglican Chui'ch on this point, religious body are valid for its {qq) This account is derived from members, e.g., neither Orthodox nor information given by the Eev. Canon Anglicans (formerly) can marry their W. J. Oldtield, D.D. deceased wife's sister in Eussia, while (r) Fortescue, The Amienian Church a Eoman Catholic may by dispensation, (1872), Loudon. 64 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. Marriage is forbidden between persons within seven degrees of blood relationship, except by dispensation from the Catholicos exceptional!}' for persons beyond great-great-grandchildren. III. The XJniate Churches are those which, originally Eastern, have accepted the supremacy of the Pope. They correspond to the different separated Churches, and retain the Eastern canon law. These are the Chaldeans, corresponding to the Nestorians, the Uniate Copts, Abyssinians, Syrians, Maronites (the only Church wholly Uniate), Armenians, Uniates of Malabar, Melkites, Euthenians, Bulgarians, Eoumanians in Roumania and Transylvania and Italo-Greeks. In Hungary, the Uniate Church or Greek Catholic Church, which is governed by the Archbishop of Blasendorf, was constituted by a union between the Roman Catholic Church and part of the Orthodox Roumanian Church in Transylvania, in 1698 — 1700, which followed on that principality passing under the rule of the house of Austria in 1688. The material features of the union for the present purpose were that the Roumanian Church continued the use of its own canon law, e.g., its married priesthood, so far as it did not contradict the terms of the union ; and the relationship between it and Constantinople is maintained by appeals being allowed from the decrees of the General Synod to the Metropolitan of Ugro-Wallachia as exarch of the Patriarchal throne, with a further reference to the final determination of the Patriarch of Constantinople and his council, according to the canons of the Council of Chalcedon, There is also the Uniate Armenian or Latin Armenian Church in Persia and Turkey, which since the fourteenth century has admitted the supremacy of the Pope, and is governed by the Patriarch of Cilicia, the foundation of the see being due to Pope Benedict XIV. in the middle of the eij^hteenth century. The Latin Armenians in Austria similarly admit the Papal supremacy, but keep their original liturgy, and are governed by the Archbishop of Lemberg. SECTION V. Oriental Systkms. The chief provisions of the following Oriental systems may be ))riefly noticed, as being either in force in British dominions such as India, Burmah, Cyprus, and Gambia, or as coming within the HINDU LAW. 65 jurisdiction of British ex-territorial Courts, e.g., in China and Siam, or lately codified on Western lines, such as Japan. Law of India. — The marriage law of India is jDurely personal. It varies generally according to the religion, and sometimes accord- ing to the tribe or caste of the persons concerned. Occasion- ally a family custom may, amongst Hindus, have a binding effect. The bulk of the population, viz., the Hindus and Muhammadans, are polygamous, although polygamy is, in practice, rare amongst Hindus. Christians are necessarily monogamous. Polyandr}'' is practised amongst some tribes. " There are two recognised types of polyandry — the matriarchal, where a woman forms simultaneous alliances with two or more men who are not necessarily related to each other, and succession is therefore traced through the female ; and the fraternal, where she becomes the wife of several brothers. The former practice was once prevalent among the Nayar and other castes on the Malabar coast, but it has now fallen into desuetude, though the women enjoy full liberty (which, how- ever, is seldom exercised) to change their husbands, and succession is still traced through the female — / e., a Nayar 's next heirs are not his own sons, who belong to their mother's family, but his sister's. The latter form of polyandry is still more or less common along the whole of the Himalayan area from Kashmir to Assam, and likewise among the Todas of the Nilgiris. It exists as a recognised institution chiefly among people of Tibetan affinities, but it occurs also, though more or less concealed, among various communities in the plains, such as the Jats of the Punjab and the Santals of Bengal" (s). Hindu Law.— In prehistoric times the Hindus recognised several forms of marriage. Manu(f) describes eight forms, some of which, although recognised, were described by him as reprehensible, and would now be treated as either amounting to ravishment or to mere concubinage. The necessity for sons to protect the family in ancient times justified the legitimation of the issue of any form of sexual alliance ; but with the growth of civilisation, and the increased appreciation of morality, the grosser forms disappeared, and only two, namely, the Brahma and the Asiira{a), are now recognised, except where a custom (not of an immoral kind) has the force of law. (s) ImperialGazetteerof India, 1907, {t) Ch. iii., pars. 21—41. vol. i., p. 483. (n) Post, p. 21(i. M.L. 5 66 PRINCIPAL ORIGINAL SYSTEiMS OF MARRIAGE LAW. According to Hindu ideas marriage is necessary to every man and woman. Without it they cannot attain perfect purification. Not only is it based upon religion, but religious observances are necessary for its completion. By marriage the husband and wife become one person, and their relationship lasts at least during the lifetime of the wife, whether the husband predeceases her or not. Muhammadan Law. — Muhammadans all over the world are governed by the same general system of law, with a few variations according to the sect or school to which they may respectively belong. Unlike most systems of law, the Muhammadan law does not attach any religious significance to marriage, or provide any necessary religious ceremonies therefor. Marriage is, according to Muhammadans, purely a civil contract. Its sole object is the legalisation of intercourse and the legitimation of children. As it is put by Mr. Amir Ali, " Eegarded as a social institution, marriage under the Muhammadan law is essentially a civil contract. Its validity depends on proposal on one side and acceptance on the other. It does not insist upon any particular form in which the contractual performance should be effectuated. And though among the Sunnis the presence of witnesses is necessary to the validity of a marriage, their absence only renders it invalid, which is cured by consummation. In fact a marriage contract as a civil institution rests on the same footing as other contracts " {b). According to Muhammadan law a man cannot have more than four permanent wives at the same time, but the Sliia law permits any number of temporary marriages for a limited period which may be a term of years, a month, a day or even part of a day. As when the term of the contract is not specified the alliance is valid as a permanent marriage (c), the practical effect is to permit unlimited polygamy in the case of Shias. The rules as to prohibited degrees of kinship are practically the same as those ordained in the English canon law. The prohibited relationship on the ground of afiinity is confined to the wife of a father or other ancestor, the mother or other ancestress of a wife, a wife's daughter or other descendant, and the wife of a son or other descendant. With certain exceptions, a marriage l)y a man with a woman wlio is so connected with him through some act of suckling that, if it had been instead an act of {h) Muhammadau L;iw, 2nd ed., p, 270. (r) Baillic, ii., 43. BUDDHIST LAW OF MARRIAGE. 67 procreation, she would have been within the prohibited degrees of consanguinity or affinity, is voidable (d). A marriage can be dissolved at the pleasure of the husband, but the power of divorce is considerably controlled by the necessity for the payment of dower, for which a contract is made in nearly every Muhammadan marriage. It is generally usual to fix as dower, pay- able on the dissolution of the marriage by death or divorce, a sum, the payment of Nvhich would inconvenience the husband, and where no such amount is fixed, the Court can fix the amount with regard to the sums usually fixed for females marrying from the wife's family. Parsi Marriages. — The Parsis seem to have been always monoga- mous, but divorce was possible on account of barrenness or impropriety. In 1818 the Parsis in Bombay resolved that no divorce should be recognised except with the leave of their Panchayet (a board of arbitration). This Panchayet decayed and finally expired in 1836. The marriage law of the Parsis was settled by Indian Act XV. of 1865 {e). By that Act (/) no Parsi can contract any marriage in the lifetime of his or her wife or husband, except after his or her lawful divorce from such w^ife or husband by sentence of a Parsi Matrimonial Court as established by the Act. The forms of these marriages are dealt with subsequently. Christian Marriages. — The law for marriages of Christians follows the lines of the English law. These marriages have been regulated by Indian statutes, which provide for a religious or a civil ceremony. Statutory provision is also made for civil marriages of persons not belonging to the religions above mentioned or to other specified religious denominations. Burmah. — Buddhist Law of Marriage {g). — The personal law of the Burmese in matters relating to marriage and divorce is to a great extent to be found in the customs prevalent amongst the people, though the Dhamathats, the Codes of former days, which contain the basis of the law, act as guides. Marriage is entirely a civil contract and dependent for its formation like other contracts, and, with the exception that in [il) Wilson's Anglo-Muliummadan {g) This account is contributed by Law, 3rd ed., p. 113. Mouug Tun Lwin, K.S.M., barrister- (e) See pp. 146, 217. at-law, and magistrate at Eangoon. ,(/) S. 4. 5—2 68 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. the case of minors the want of capacity may be supplied by the parent or guardian, it has no rehgious character. The Buddhist monks, considering such ceremonies to be worldly, remain aloof from them. There are three modes by which marriage is created : — (a) A man and woman given in marriage by their parents, who live and eat together ; (b) a man and woman brought together through the intervention of a go-between, who live and eat together ; (c) a man and woman who come together by mutual consent, who live and eat together. Living and eating together is mentioned in the Manukye, but it is not an essential condition, and would be circum- stances merely in proof of a marriage. The public banquet or joining of hands may be evidence of marriage, but such evidence may be over-ruled by showing the want of consent. The fact that the girl immediately after the alleged marriage quitted the man may be proved as a repudiation. The existence of force, fraud, or mistake vitiates the contract. No particular ceremony is necessary, but in most cases there is always a gathering and some kind of entertainment, so beloved of Oriental races, to evidence the wedding. When disputes arise there is always evidence available. In doubtful cases the conduct of the parties before and after the alleged event would show whether the status of husband and wife had been acquired. The surrounding circumstances incident to a Burmese marriage may be shown to have existed. Cohabitation with the required repute, as husband and wife, is the rdatrimonial relation. The Burmese law of marriage has been likened to the marriage law of Scotland. Polygamy is recognised in the Dharnathats. There is, however, undoubtedly a very strong feeling amongst the people against such a practice, and those who have more wives than one are not regarded as resjiectable. The practice is not so prevalent at the present day, and may be said to have become so rare that it will in course of time disappear altogether. In the case of minors the consent of the parent or guardian is essential. The age of majority is twenty for an unmarried woman. But the consent of the minor is also necessary. A minor Burmese woman who is either a widow or has been divoi'ced from her husband may, however, contract a fresh marriage without the consent of her parent or guardian. BUDDHIST LAW OF MARRIAGE. 69 The father lias the prior right to give a daughter in marriage, and on his death the mother ; when both are dead the nearest relation must act in their place. In the absence of relations the protector or guardian would exercise the rights that the parents had. When the children have been given away in adoption, the adoptive parents are those who have control over them in this resjDect. The Dhamathats do not lay down an}' rules regarding the degrees within which marriage is prohibited. But custom which is held in deep respect is clear upon the point, and those who deviate from it incur social disapprobation, and deviations are not so frequent as to deserve much comment. The degrees of consanguinity and affinity within which marriage cannot take place are to a large extent the same as under the English canon law. A man may, however, marry his wife's sister in the lifetime of his wife. Such marriage or a marriage with a brother's widow would be clearly opposed to public opinion, though not illegal. Marriage with a deceased wife's younger sister is, on the other hand, considered as a most becoming union. A marriage between first cousins is not permissible. But among the Arakanese and the Tavoyans a marriage between the children of a brother and a sister, but not of two brothers and sisters, is not regarded with disfavour. There is no law against incest, and there has been no decision of the highest Courts on the subject. A suit for breach of promise of marriage lies amongst Burmese Buddhists. Such an action is decided under the Indian Law of Contract, and not by Buddhist Law, which is permitted to regulate only questions relating to succession, inheritance, marriage or religious usage. In the matter of assessment of damages the same considerations would have to be regarded as in all civilised countries. There can be no marriage between a Muhammadan and a Burmese unless the latter embraces the former's religion. Profession with or without conversion is necessary. In the case of a Hindu there can be no valid marriage with a Burmese Buddhist woman so long as he remains a Hindu. A person cannot become a Hindu by conversion, but must be born as such. It would, therefore, be necessary for him to renounce his religion to contract a legal marriage with a Buddhist. 70 PRINCIPAL ORIGINAL SYSTExMS OF MARRIAGE LAW. Law of China (li). — In China the family is the social unit, and the law of the family is very similar to that which prevailed at Rome in the earliest times. The Chinese family embraces all those descended from the head of the family, excepting females who have married into other families ; it also includes the wives of male descendants of the paterfandlias, as well as persons who have been adopted into the family, and servants and slaves. Thus, as in early Eome, relationship between members of the same family can be traced only through agnates and not through cognates, and the law of imtria potestas and manus holds good. The marriage law is made up partly of law in the proper sense of the word, but very largely of ancient custom. Marriage is a purely civil status dependent on contract. The contract is concluded by the parents of the parties, and the consent of the latter is immaterial. The contract is usually, but not always, in writing, in which case it is signed by the persons in whose potestas the parties are. By it the amount of the presents and the latest day for concluding the marriage are fixed. It is an established custom that men marry when over twenty years of age, and that girls are rarely given in marriage before their fifteenth year. Frequently, however, children are betrothed at an early age by the heads of their respective families, but actual marriage does not take place till the character is formed. Celibacy in grown-up persons, except monks and nuns, is extremely rare, it being considered the duty of every man to beget male descendants to carry on the worship of the family ancestors. For this reason concubinage is allowed as well as adoption, as a means of increasing the family. In the case of orphans guardians are appointed, who have the same potestas as the head of a family. Their consent to the marriage of the ward is necessary. If a betrothal has been arranged by the head of the family, any other contract to marry entered into by the son is void, unless such contract has been carried out and the marriage has taken place, in which case it stands good. If after a contract of marriage has been arranged it appear that false statements have been made by the family of the bride, then the contract is void, the presents are returned, and the head of the family of the bride is punished with eighty blows of the l)amboo. (//) This account is contributed by Mr. J. Bromlcj' Eaiiics, barristor-at-la\v. LAW OF CHINA. 71 If false statements have been made by the father of the bridegroom the same results follow, except that the presents are not returned. If the fraud be discovered after marriage an action for divorce lies. In theory mixed marriages with savages are not allowed, but many Chinese settlors in Formosa have taken brides from among the savages of that island. In any case, if a man gets a girl with child the child is considered his legitimate offspring. Europeans are not specially mentioned in the law, but a Chinese would have little difficulty in repudiating a European wife. Members of the same family may not marry each other, neither may cognates of different degrees. Cognates of the same degree who are not also agnates may intermarry. Further, marriage is forbidden with the step-daughter, with female relations within the fourth degree of relationship, with the widow of a male relation of the fourth degree, or the sister of a widowed daughter-in-law. Marriage, except with concubines, within the legal time of mourning is prohibited, and even then it is not allowed if the mourning is for a parent or by a widow for her deceased husband. Marriage is forbidden with a woman who has committed a crime and fled for fear of punishment. Adultery is a crime in China, and the husband may kill his wdfe and the adulterer if taken in flagrante delicto. Marriages between officials and actresses or singing girls are forbidden. Such marriages are also prohibited to the sons or grandsons of nobles with hereditary rank. Priests and nuns are not allowed to marry, but lay brethren may. Marriage between male slaves and free women is impossible. Puberty is not requisite to enable a person to marry, but if non-attainment of puberty, disease, insanity, &c., are not revealed they are considered impedi- ments to marriage equally with the other circumstances enumerated above. The above impedimentn render a marriage absolutely null and void. Ignorance exempts the parties from punishment, but does not avail to make such a marriage valid. When the parties desire to conclude the marriage, betrothal having already taken place, presents of silk are sent to the bride's father by the bridegroom's family, together with a document con- taining the horoscope of the betrothed couple. This document constitutes the marriage contract and stipulates what sum is to be 72 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. paid for the bride, such sum amounting at times to some hundreds of pounds. By accepting this price the bride's father sells and manumits the bride to the bridegroom's family. Then a day for the bride to be handed to the bridegroom is fixed, and on that day she is conveyed to the bridegroom's home in an enormous red chair, and her furniture, presents, &c., are carried in procession at the same time. On arriving at her new home she kneels with her husband before his ancestral shrine. They then drink from two cups tied together with a red string, and the marriage ceremony terminates. Law of Japan (/). — The law of Japan on the subject of marriage is now contained in the Civil Code. Previously there was no general written law, but the subject was regulated by custom, and the ceremony was always civil, not religious. Since the Code, owing to the introduction of "Western ideas, marriages are in some cases contracted in temples, Shinto or Buddhist, though this has no juridical effect, and the ancient customary ceremony is generally still adojjted. This takes place at a meeting of the families of the con- tracting parties, and the parties sitting opposite to each other drink together the contents of three cups of wine successively, thrice out of each, the cups being placed one upon the other. The marital status could also be constituted by the parties living together in marital relations. Since the Code it is required that the parties shall make a declaration in the presence of the proper civil officer and two witnesses of full age to the effect that they contract marriage, and the marriage thereupon takes effect. This is applicable in the case of two Japanese persons in a foreign country, the i)roper officer then being the minister or consul. No previous notification of inten- tion to marry is necessary. The consent of the head of the family in all cases, and of the parents in the family for men and women who have not attained thirty to thirty-five and twenty-five years respec- tively, is required, as well as the consent of the parties, and minors in certain cases require the consent of the guardian or family council; but the want of the parents' consent does not invalidate the marriage, though it renders it liable to be annulled under certain conditions. If persons who have entered a family by marriage wish to re-marry and enter another family the consent of the (i) The editors are indebted to Mr. Cassation, Tokio, for assistance with H. Yokota, Judge of the Court of the foHowing account. . LAW OF JAPAX. 73 heads of both families is necessary. As regards the other conditions of the status, such as impediments and annuhuent, the Code adopts substantially the provisions of the Western law ; and where the Code does not make specific provision the ordinary law of contract applies. Concubinage, formerly, though not recognised by law, was not con- sidered criminal, but was admitted with a view to continuing the family. But it is now viewed with disfavour socially, and under the present law it is a cause for divorce by a deserted spouse if leading to desertion (A-). Under the Civil Code no ceremony of marriage is required. The status is created by registration, but actually takes effect by giving notice to the registrar and the existing intention of the parties to marry. The notice is given by both parties before two witnesses who are of age, and may be verbal or written, and the person entering the other's family is registered as such and taken out of the register of his or her present family. The marriageable age for men is seventeen and women fifteen. It cannot take place between persons who are lineal blood relations or relations by marriage in the direct line, or collateral relatives of the third degree of relationship, but this prohibition does not extend to marriages between adopted persons and the relatives of the adoptive jmrents. The prohibition, however, continues after the relationship has ceased by divorce or dissolution of the adoption respectively for relatives by marriage in the direct line, for adopted persons, their consorts and lineal descendants, and the adoptive parents and their lineal ascendants. A woman whose marriage has been dissolved and annulled cannot re-marry till after expiration of six months from the date of dissolution or annulment of her previous marriage unless she was pregnant before these dates, when this provision takes effect from the date of the child's birth. Marriages infringing the provisions above mentioned (/) may be annulled by a Court of law on the application of either of the parties, the head of a family, or relative or public prosecutor. Marriages which contravene provisions of the Code other than (A-) See Gubbins, Civil Code of 777, 783, 784. Japan, part ii., Introd. xxxviii. — xl. ; (/) Arts. 765 — 770. Civil Code, arts. 750, 765, 772, 775 — 74 PRINCIPAL ORIGINAL SYSTEMS OF MARRIAGE LAW. degrees of relationship or registration remain valid until a Court orders their annulment. Law of Siam(»?). — Marriage in Siam has always been a civil contract, and most of the rules governing contracts apply also to marriage. It cannot be better expressed than in the words of the Foreigners Marriage Act, 1898: — "Marriage according to Siamese law and custom is a contract between a man and wife to which the ordinary principles which attach to other contracts are applicable, and it is consequently validly celebrated whenever it clearly results from the words exchanged or from the rites observed that both parties freely consent to take each other as man and wife, provided he or she does not labour under some particular disability." The source of the law is mainly the common law ; a collection of this was made and enacted some 128 years ago ; it is known as the Laksana Phua Mia(»), but this is not exactly a Code. Since then there have been a few decrees regarding the law of husband and wife. As there are many races in Siam, this law primarily only con- cerns the Siamese ; as regards other races, the marriage contract may be to a very great extent (or even in its entirety (o) ) governed by the habits and customs of each race. A woman cannot marry under the age of twelve, and presumably men under that age cannot marry. In marriage, the two parties must consent {])) themselves, and in addition there must be the consent of the parents of the wife (q). A regular marriage is there- fore a contract with three parties. If the wife has no parents and is not of age (twenty years), the consent of her guardian is neces- sary. Fraud, force and mistake (r) apply to marriage as to other contracts. Insanity before marriage and after promise will end the contract ; for there can be no consent on the part of the insane person. Insanity after marriage does not end tbe marriage, nor is it a ground for divorce (s). Impotence is regarded as rendering the contract null and void. (m) This account is contributed by vol. \. II.E.H. Prince Rajburi Direkriddhi, (o) See, for instance, tlie Seven Minister of Jiistice, Bangkok. Codes Provinces Act, E. S. 120, s. ;J2. of the Siamese biw are now being pre- ( /') Phua Mia, art. L'50. pared on all subjects (except a Pecal (7) The laws on L.'ikpha. Code which is already in force). (r) Phua Mia, art. 112. {n) Sec Prince Rajburi's edition, (s) Toh's case. LAW OF SI AM. 75 Marriage between ascendants, descendants, and brothers and sisters of full blood is forbidden ; but is allowed between cousins and with deceased wife's sister (t). There is no rule against mixed marriages, but the obligation of the contract must be mutual. There is no law to prevent a man from marrying more wives than one, but there can only be one principal wife ((0- The status of all other wives is regulated by law, and provided this law is fulfilled, all the children are legitimate. There is no ceremony regulated by the State; any ceremony will be sufficient, provided it is according to the custom or law of the race concerned. No banns or notices are required. An action for breach of promise will lie, though the damages are confined to the forfeiture of the kong-mun (earnest money), and to out-of- pocket expenses, such as the cost of a feast provided (.r) . (i!) Phua Mia, arts. 35, ;i6. {x) Neung i\ Hok Lee, C. C. 128. (m) Laksaua Moradok, art. 3. CHAPTEE II. CAPACITY FOR MARRIAGE. The question of capacity for entering into a valid marriage contract is subject to certain positive and negative conditions. The former are the requirements for a valid marriage — without which no marriage is considered to exist ; the latter are the circum- stances which are considered prohibitions to a marriage — either absolute or relative, — and which, if contravened, form the grounds upon which a marriage once entered into can be declared void. The former class includes the requirements of (a) the proper age of the parties, (b) the consent of the parties, and (c) the consent of third persons in whose custody the parties are. The latter class may be subdivided into (1) absolute prohibitions, such as (a) the existence of a valid marriage previously entered into by one of the parties, (b) annus luctus, (c) incapacity of pro- creating children, and (2) relative prohibitions, such as (a) degrees of consanguinity and affinity, (b) difference of religion, (c) adultery, or the actual or attempted homicide of a spouse, (d) ravishment and abduction, (e) the relationship of guardian and ward, (f) spiritual or official position, (g) infectious disease. The requirements of a valid marriage are the conditions which a marriage officer should satisfy himself are fulfilled before allowing the banns to be pronounced and the marriage to be celebrated. The prohibitions to a marriage are grounds on which certain persons can raise an objection, and either oppose the celebration of the marriage or proceed to have the marriage, once entered into, set aside. SECTION I. PiOMAN-DuTcii Law. I. Dutch Republic. — (A) Requirements. — (a) Age. — The age required in the Dutch Provinces for a valid marriage was not uniform. In fact, the Germanic nations do not seem to have had any fixed rules CONSENT OF THE PARTIES. 77 on this subject, and custom only gradually introduced various ages. Under the influence of the Eoman Catholic Church and the Koman law, most of the Dutch Provinces adopted the age of fourteen for boys and t\Yelve for girls as the age of puberty, and, in consequence, as the age at which a valid marriage could be entered into (a). A marriage entered into by either party before that age, if by mistake, became valid when the proper age was reached (6) ; if it had been entered into knowingly, the marriage might be considered invalid on account of absence of proper consent (c). (b) Consent of the Parties. — In the Dutch Kepublic the parties were not considered to have given their free consent if anything had essentially interfered with their liberty of choice. They could not be married against their will, and their consent had to be given " without duress, error, or fraud " (d). A distinction was, however, drawn between the promise made at the time of the betrothal and the promise made at the time of the marriage ceremony. Whilst it was considered possible that a promise to marry might be given under coercion, or in great fear, or might be fraudulently obtained, and in such circumstances could not be considered to be of a binding character, the publicity of the marriage ceremony and the obligatory character of the sponsalia de prcesenti were held to exclude the possibility of any consent then given being extorted by duress or fraud (e). If the marriage ceremony were once performed, and no other impediments could be raised against it, the marriage could not under any circumstances be set aside (a) Grotius, Introd., i., 5, 3; van Pand., xxiii., 1,2. Leeuwen, E. H, E., i., 12, 3 in fine; (d) EcMreglement of the Generali- Cens. For., i., 1, 13, 4 ; Boey, Woorden- teyt, March 18th, 1656, art. 11 ; Fock. tolk, p. 339; van der Linden, Koop- Andr., Bijdragen, i.. 144, 145; Het manshandboek, i., 3, 6, on p. 21 ; Cos, Oud Ned. B. E., ii., 148 ; Utrechtsche Huwelyk, par. 127; Brouwer, de Cons., i., Cons. 3 on p. 24; 52 on p. Jure Conn., ii., 3, 21 ; Fock. Andr., 160. Bijdragen, i., 139, 142—143; J. Voet, {e) According to the Echtreglement, Ad Pand., xxiii., 1.2; Bynkershoek, the parties had to be asked before the Quaest. Jui*. Priv., ii., 3. marriage was solemnised whether they (6) Van der Keessel, Thes. Sel., wanted to be married to each other, Thes. 66; Brouwer, de Jure Conn., " zonder bedwanck, simulatie oft& ii., 3, 25. bedroch " : J. Voet, Ad Pand., xxiii.,. (c) Fock. Andr., Het Oud Ned. 2, 6; van Leeuwen, Cens. For., i., 1, B. E., ii., 147 ; Brouwer, de Jure 13, 5 and 7; Brouwer, de Jure Conn.,. Conn., ii., 3, 26 and 28; J. Voet, Ad i., 17, 24-2o. 78 CAPACITY FOR MAREIAGE ROMAN-DUTCH LAW. on the ground that the consent had been obtained by force or fear (/). Force and fear were valid reasons for avoiding marriage, but not for rendering marriage void. Error, on the other hand, had a different effect. If mistake had occurred in the person of the bride or bridegroom, or in some substantial quality or character of the same, there was no valid marriage {g). Error regarding points of minor importance could not lead to a declaration that the marriage was void {h). Those who, on account of unsoundness of mind, were incapable of exercising their free will, could not enter into a valid marriage. A marriage entered into by them was void(i). (c) Consent of Third Parties. — The Germanic laws required that minors who wanted to contract a marriage should first obtain the consent of their father, or any other person who acted for them in the capacity of mundoaldus, and of other relatives. A marriage without such consent was, however, not considered void or voidable (/c). As already seen, the Catholic Church extended this requirement to the consent of both joarents. A marriage of minors, however, entered into without such consent, was not considered to be void, and only carried with it pecuniary disadvantages for the married couple (l) . The Council of Trent did not alter this rule. In the Dutch Provinces the consent of third persons was required (/) At the marriage ceremony tlie [g) Gr. PL, ix., 371 ; Fock. Andr., person who considered that he was Bijdragen, i., 145 ; Brouwer, de Jure goingtobe married under coercion had Conn., i., 18,8 — 12. a last chance to speak. This is quite (h) J. Voet, Ad Pand., xxiii., 2, 6; obvious from the law in those pro- Brouwer, de Jure Conn., i., 18, 13 — 37. vinces where the copula cartiaJis was (0 Grotius, Introd., i., 5, 4. Those still considered as an essential for the who could exercise a free will, though completion of the marriage. In those they could not express it (deaf and cases the person who considered him- dumb), could enter into a vahd mar- self the victim of duress, fear, or fraud riage : Van Leeuwen, Cens. For., i., could treat the marriage as invalid, 1, 13, o n. ; 11. Brouwer, de Jure even after the marriage ceremony, Conn., ii., 4, 32; J. Yoet, Ad Pand., until the consummation had taken xxiii., 2, 6. place: lies adhuc est intcgra cum non (/.•) Fock. Andr., Bijdragen, i., 06. interveiierit copula : '[Jivech.isch.QQona., (/) Fock. Andr., Bijdragen, i., 145 i., Cons. 52 on p. IGO, and authors — 147. quoted. CONSENT OF THIRD PARTIES. 79 for marriages of minors all through the Middle Ages. In some provinces these third persons were, the father or the mi(ndoaldus a,nd the nearest male relatives (/) ; in others, the parents, or, in their absence, the guardians of the minor children, in most cases together with some of the children's relatives on either side ()/0- Non-observance of this rule only carried pecuniary disadvantages with it, and marriages of minors entered into without the required consent were neither voidable nor void {n). This was provided in different statutes in the different provinces. A general rule was made in this respect by the Emperor Charles Y. in his Ecuwig Edict of 1540 for all the Low Countries. It was pro- vided that girls who had not yet reached their twentieth year, or men under twenty- five years of age, could not be united in holy matrimony without having previously obtained consent from their father or mother, and, if neither of them were living, from friends and relatives, or finally, from the aldermen of the town (o). Who- soever married a minor without such consent could not in any way derive any benefit from the property possessed by the minor, either during the marriage or after its dissolution, either on account of community of property or by marriage contract, or by will, or in any other way, not even if the necessary consent had been obtained after the marriage had been entered into Q)). In order to check clandestine marriages the Dutch Reformed Church introduced the nullity of marriages of minors which had been celebrated without the consent of their parents. The civil authorities, following in the footsteps of the Church, declared marriages entered into by minors (or persons under a certain age) {q) without the consent of their parents, guardians, or curators, friends or relatives, to be null and void. Magistrates and Church authorities had to inquire into the age of the parties and to ascertain {!) See uote (/) ou previous page. Groenewegen, Leg. Abr., Cod., v., 4, 8 ; (m) Pock. Andr., ad loc. cit., J. Voet, Ad Pand., xxiii., 2, 20 ; v. d. pp. 149, 151, 152, 153, 155, 157, 158, Keessel, Thes. Sel., Thes. 75, 218; 161 — 163. Fock. Andr., Bijdragen, i., 147. («) Fock. Acdr., ibid. (g) The age fixed in the different («) Fock. Andr., Het Oud Ned, statutes under which a person required B. E., i., 150. his parents' consent did not always {p) " Eeuwig Edict" of October coincide with the age of majority: 4th, 1540, art. 17 ; Grrotius, lutrod., Fock. Andr., Bijdragen, i., 156, n. 5, i., 8, 3 ; ii., 5, 8 ; ii., 1,8; and ii., 12, 7 ; and elsewhere. 80 CAPACITY FOR MARRIAGE — ROMAN-DUTCH LAW. ■whether the proper consent had been obtained, in case it appeared that the proper age had not been reached. These provisions were — to a smaller or larger extent— gradually adopted in the different provinces (r). As to Holland, which did not require the consent of guardians, they were contained in the Political Ordinance of 1580 (s). Such consent could be given previously to or after the marriage ceremony. If it were given after the marriage ceremony, this made the marriage valid, but did not take away the disadvantages provided by the Eenwicj Edict (t). Express consent was not necessary. If the parents had knowledge of the publication of the banns and did not intervene, it was considered that they had tacitly given their consent (•«). If the father and mother differed in opinion, the father's decision prevailed (h). If both parents, or either of them, were incapable of expressing their, or his or her, will through unsoundness of mind, they or the person so incapacitated were considered as dead (c). By "parents" were understood father and mother, not the (r) In Gelderland by a Proclamation of 1597 : Lamb. Goris, Tract, c. 10. For Utrecht of. A. v. Wesel, ad Nov. Const. Ultraject., 14, 63 et seq. ; Utr. Cons., i., 2, pars. 3 — 12 ; Ecbtreglement of the Generaliteyt, March 18th, 1656, art. 43. In Zeelaud and Fries- land the consent of guardians and curators was required in case the parents were dead : Folit. Ord. Zee- land, February 8th, 1583, art. 7 ; V. Sande, ii., 1, 6, 7 ; J. Voet, Ad Pand., xxiii., 2, 11, and authors quoted; Fock. Andr., Bijdrageu, i., IfjO — 163, and authors quoted; Het OudNed. B. Pt., ii.. 150, 151. («) Art. 3 jo. 13 ; v. d. Keessel, Thes. Sel., Thes. 75 ; IIoll. Cons. v. Cons. 189; Groenewegen, Leg. Abr., Cod., v., 4, 8; Matthaeus, Paroem. ii., 17, 18; J. Voet, Ad Pand., xxiii., 2, 16. (0 Politic. Ordon., April 1st, 1580, art. 13; v. d. Keessel, Thes. Sel., Thes. 75 ; van Sande, Decis. Fris., ii., 1 Def. 2 ; J. Voet, Ad Pand., xxiii., 2, 19. (a) J. Voet, Ad Pand., xxiii., 2, 18, and authors quoted ; Brouwer, de Jure Conn., ii., 24, 43—44. {h) J. Voet, Ad Pand., xxiii., 2, 13. In some provinces the decision of the judge or magistrate could be asked in case the parents differed : Fock. Andr., Het Cud. Ned.B. R., ii., 151. Similar provisions were made in the Ontwerp 1820, art. 133, which provided that in all cases of diiference of opinion between husband and wife the judge should decide. (c) V. d. Keessel, Thes. Sel., Thes. 82; Ontwerp 1820, art. 137. If both parents were absent for a con- siderable time and it was difficult to connuuuicato with them, the judge had to decide according to circumstances, and he could give consent instead of the parents : Art. 138. PROHIBITIONS TO MARRY. 81 grandparents. The consent of the grandparents was never required nor was the consent of the relatives and friends (d). In case both parents were dead, the consent of the guardian or guardians was — as a rule, as far as the Province of Holland was concerned — not required, unless the particular " keuren " of the towns provided otherwise (e). In the Province of Zeelaiid, on the contrary, in such case the consent of the guardian or guardians was required together with that of the nearest relatives, on pain of nullity of the marriage entered into without such consent (/). If the parties had become of age — that is to say, had reached the age of twenty-five or twenty years respectively, or had passed the age at which consent of the parents was considered indispensable — the con- sent of their parents had no longer to be asked, but the parents were still entitled to intervene. If the parents intervened, an appeal could be made by the children to the magistrate or the judge, and a summons might be served on the parents to give their consent. If the parents did not appear to this summons, and if they did not appear before the magistrate within a fortnight after the summons had been issued, their consent was i^resumed to have been tacitly given. If they appeared and did not give any valid grounds for their objection, the marriage could take place notwithstanding their dissent. If the decision of the magistrate sustained the parents' objection, the marriage could not take place. The decision of the magistrate was final, but did not extend beyond the magistrate's jurisdiction (//). (B) Prohibitions to Marry. — 1. Absolute ProMbitions.— (a) An existing valid Marriage. — A second marriage, whilst the former husband or wife is living, and the former marriage is not legally dissolved, is ipso facto null and void. In the civil law the rule was " Duas uxores eodem tempore habere non Hcet " (/t). [d) Plakaat Holland, July 31st, on p. 24 and authors quoted; Fock. 1671 ; Lybreghts, Reden. Veitoog, i., Andr., Bijdragen, i., 160. 11, 12; J. Voet, AdPand., xxiii., 2, 15; (/) V. d. Keessel, Thes. Sel., Thes. J. V. d. Linden, Koopmanshandb., i., 77 and 126; Fock. Andr., Bijdragen, 3, 6 (2) on p. 23. i., 163. (e) Grotius, Introd., i., 8, 3 ; S. van {(j) Plakaat States of Holland, Sep- Leeuwen, Cens. For., i., 1, 13, 10; tember 27th, 1663 ; J. Voet, AdPand., V. d. Keessel, Thes. Sel., Thes. 77 and xxiii., 2, 12. 125 ; J. Voet, Ad Pand., xxiii., 2, 16; (/<) Inst, i., 10, 6, in fine. V. d. Linden, Koopmansh., i., 3, 2, M.L. G 82 CAPACITY FOR MARRIAGE — ROMAN-DUTCH LAW. With the Germanic tribes originally bigamy was not forbidden, though it was not customary. A man could have more than one wife, though a woman could not marry more than one man (i). But the influence of the Catholic Church introduced the definite prohibition of marriages with more than one woman at the same time (A). In the time of the Dutch Republic, bigamy (especially if followed by concuhittis) was severely punished, as the offence was considered equal to adultery. In some cases offenders ran even the risk of capital punishment, though van Leeuwen states that death sentences for bigamy had become obsolete (I). In case of uncertainty whether the husband or the wife were alive, leave might be granted to the party who was left behind to legally enter into a second marriage without waiting for the absentee's return. By the Roman law a second marriage was legalised if the husband or wife had been captive and had continued in captivity for five years without any news having been received from the absent spouse (m). In the Dutch Republic, if a married person were absent from home for a long period of years without anything having been heard of him or her, the States could grant the other party to the marriage leave to marry again. It was enacted by the States- General in the Echtreglement of March 18th, 1656, that in case a husband had left his home and an interval of five years had elapsed without the wife having received any intelligence from him and no evidence existed of his being alive, the magistrates, after proper inquiry, could grant leave to the wife to marry again (n). This provision was not universally recognised, and unless specially enacted by the States of a particular Province, no length of absence of lier husband could render the wife bond fide in marrying (tj Fock. Andr., Annot. ad Gi'ot. 26 ; Echtreglement of the Generaliteyt, Introd., ii., 11; Bijdragen, 1., 141; 1656, art. 84 ; v. d. Keessel, Thes. Sal., Ilet Oud Ned. B. E., ii., 152. Thes. 62 ; H. Brouwer, de Jiire Conn., (k) Fock. Andr., loc. cit., and authors ii., 5, 27 and 28. quoted by him; H, Brouwer, de Jure {in) Dig. xxiv., 2, 6. Conn., ii., 6, 26. (x) Echtreglement, art. 90; S. van (/) Grotius, Introd., i., 5, 2 ; Fock. Leeuwen, E. H. E., i.,15, 4, and note; Andr., Annot. ad Grot. Introd., ii., on Ordon., States of Zeeland, March 18th, p. 11 ; Schorer, Notes ad Grot. Introd., 1666, art. 16; Schorer, loc. cit.; H. i., .'J, 8. n. 5 ; Crimineele Ordonn., Brouwer, de Jure Conn., ii., 5, 30 ; J. Philips ii., art. 60; van Leeuwen, Voet, Ad Pand., xxiii., 2, 99, and E. II. i;.,i., 14. 2 ; Cons. For., i., 1, 13, authors quoted. PUTATIVE MARRIAGE. 83 a second husband, for, as a general rule, the death of a person is not presumed, but has to be proved (o). Regarding the consequences of a bigamous marriage, a distinction must be drawn with regard to the intention of the parties. Putative Marriage. — A marriage may be contracted in good faith, and in ignorance of the existence of those facts -which constituted a legal impediment to the intermarriage. Such a marriage is described by jurists as " matrimonium putativum, id est, quod bona fide et solemniter saltem opinione conjugis unius justa contractum inter personas vetitas jungi" (j)). Three circumstances, it has been said (2), should concur to consti- tute this species of marriage. (1) There must be bona Jules. It follows that the parties, or one of them, must, not only at the time of the marriage, have been ignorant of the impediment, but must also have continued ignorant of it during his or her lifetime ; because if he became aware of it, he was bound to separate himself from his wife. (2) The marriage must be duly solemnised [solem- niter). (B) The marriage must have been considered lawful in the estimation of the parties, or of that party who alleges the hona fides (opinio justa). The party cannot insist on the excuse if he has neglected the ordinary means of ascertaining its validity. A marriage in which these three circumstances concur, although null and void, will have the effect of entitling either spouse, if acting in good faith, to enforce the rights of property, which would have been competent to him or her if the marriage had been valid, and -of rendering the children born of it legitimate. This principle is derived from the canon law, for though the Roman law granted relief in certain cases by recognising the children born from a second bigamous marriage under certain cir- cumstances as legitimate (r), yet the Church was the first to grant relief to the parties themselves and to give an opportunity of recognising the second marriage as valid (s). A difference was made according to whether the parties had acted bond fide or had knowingly disregarded the obstacle to their marriage. (0) TJtrechtscheCons., iii., Cons. 140; {]>) Ilertius, de Matrim. Putat. Schorer, Notes ad Grot. Introd., loc. ((/) Nouveau Deuisart, ii., s.v. Boune cit. ; Fock. Andr., HetOud Ned. B. E., foi des contractauts, s. 2, n. 1. ii., 152 and 153; H. Brouwer, De Jure (r) Dig., xxiv., 2, 57. •Conn., ii., 5, 29 — 32. (3) C. l-i,x.,) . (b) Annus luctus. — In Roman law a widow who re-married within a year after her husband's death {(uinns hictus) suffered infamy and could not benefit by the goods left to her by her former husband. The person who thus married her, was deprived of part of the dos, and to a certain extent of the right to benefit by her will (c). As already seen the canon law did not prohibit a second marriage within the period of one year after the dissolution of the former marriage by the husband's death, though the Church refused to give its benediction to the marriage of any widows ((/). In the Dutch Republic the requirement of such an interval was introduced at a late period from the Roman law (e). The principal reason of its introduction was, to prevent confnsio sanguinis, and only secon- darily from considerations of decency and the resjiect due to the memory of the former husband. For that reason the period of one year was not taken over in the (<) Boel-Loeiiius, Dec. et Obs., Dec. Jure Conn., ii., 5, 33 — 34. 78. This was in accordance with the (/>) Stockmans, Decis. Brabant., (52 ; civil law; Dip;., xxiii., 2, 27; v. d. v. Sande, Dec. Fris., ii., 5, def.,2; v. Keessel, Thes. 8el., Thes. 64. d. Keessel, Thes. Sel.. Thes. Ho ; Fock, (a) Boel-Loenius, loc. cit., on p. 512; Andr., Aniiot. ad Grot. Introd., ii., on Van Alphen, Papegaey, i., Verbaal in ]>. 11. Rau-actie, vi., on p. 60 ; ii., Request, on (c) Cod. v., 1), de t-ec. nuptiis. p. 689; Echtreglement of the Gene- [d) Cod. x., de sec. niiptiis (iv., 21); ralitejt, 1656, art. 90; Schorer, Notes Groenewegen, Leg. Abr., Cod., v., 9, 1 ; ad Grot. Introd., i., 6, 2 and autho- Fook. Andr., Bijdragon, i.. 141. rities quoted : J Voet, Ad Pand., [e) Groenewegen, Ivc. cit. ; Fock. xxni., 2, 99, tn jine ; v. d. Keessel, Andr., llet Oud Ned. 13. E., ii., 153. Thee. Sel., Thes. 64 ; II. Brouwer, de INCArACITV TO PROCREATE CHILDRENT. 85 Eepublic. Much was left to the discretion of the Court, unless it Avas certain that the widow was with child (f). The widower was similarly bound to observe a certain period after the death of his wife before he could enter into a second marriage. The period to be observed by the widow varied in the different Provinces between six months and a year. Similarly the period to be observed by the widower varied between two and six months (g). In the Province of Holland this matter was not regulated by provincial statutes, but it was left to the different towns to regulate by town " keuren." In most of these " keuren " it was pro- vided that a widow could re-marry sooner if she had given birth to a child within six months after the death of her husband. The town of Amsterdam provided that this only applied to a widow who was not yet fifty years of age (/<)• The States-General fixed the period for a widow, over fifty years of age, at six months ; for a widow who had not yet reached that age, at nine months ; and for a widower, at three months, leaving discretion at the same time to the Courts to grant dispensation if circumstances required it (i). The sanction of these provisions consisted in fines (in olden times even imprisonment). A marriage contracted in contravention of these rules was neither void nor voidable {k). (c) Incapacity to Procreate Children. — Though the object of marriage is not exclusively the procreation of children, yet the in- capacity of doing so on the part of either husband or wife was considered sufficient reason to render the marriage voidable, although not i2)so Jacto void (l). (/) Grotius, Introd., i., 5, 3; Codex Bat., tw«Houwelyck, par. xxvi. Eegtsgel. Observ. ii., Obs. 7; J. (/:) Groeuewegen, Leg. Abrog., Cod. Yoet, Ad Pand., xxiii., 2, 3, v., 9, 1; Coien, Cous., Cons. 11.; J. 98; van Leeuwen, Censm-a For., Voet, Ad Pand., xxiii., 2,98; v. d. i., 1, 13, 27 ; V. d. Keessel, Thes. Sel., Keessel, Thes. Sel., Thes. 68; Fock. Thes. 67 ; v. d. Linden, Koopmans- Andr., Het Oud Ned. B. R., i., p. 153. handboek, i., 3, 6, on p. 21. (0 Grothis, Introd., i., 5, 4 ; ig) Fock. Andr., Bijdragen, i., p. 164 Lybreghts, Eeden. Vertoog, i., 12, 16 ; — 168. H. Brouwer, de Jure Conn., ii., 4, (/() Fock. Andr., uhi cit. sup. 1 — 19; J. Yoet, Ad Pand., xxiii., 2, (t) Echtreglement, art. 52 ; Scborer, 28 ; v. d. Linden, Koopmanshand- Notesad Grot. Introd., 1, 5, 3; Zurck, boek, i., 3, 6, on p. 21. 86 CAPAcrry for marriage — roman-dutch law. The marriage remained, therefore, vaHd unless it were set aside in the lifetime of the parties. <^ 2. Relative Prohibitions. — (a) Prohibited Degrees of Consanguinity and Affinity. — The Germanic tribes most j^robably recognised no legal prohibitions against marriages between persons who were related to each other w^ithin certain degrees of consanguinity. Customary rules not to marry within certain degrees may have been strong enough to render legal provisions on that point unnecessary (/«). It is, however, certain that the Catholic Church found reason to object to a number of marriages, on account of too close relation- ship which existed between husband and wife, and it was due to the Church's influence that rules were introduced among those peoples against marriages within certain degrees of relationship {n). The provisions of the Eoman law and the canon law on this subject have been already referred to. The Catholic Church not only prohibited marriages between blood relations and relatives by marriage, but also those between spiritual relatives, as godfather, godmother, and godchild (o).'' Eegarding the degrees within which such relationship was recog- nised, the rule laid down by Innocent III. at the Fourth Lateran Council (1215) was ultimately followed, viz. — marriages were forbidden within the fourth degree of relationship, and as regards affinity, the prohibition of intermarriage only api^lied to the affines primi and not to the a/flnes scaindi and tertii goieris. ^ The introduction of these prohibitions among the Germanic races met with great difficulty, and, as far as the Low Provinces were concerned, the result was different in the different Provinces. The Church was assisted and followed by the civil authorities, and several Placards of the sixteenth, seventeenth, and eighteenth centuries set out in detail the prohibitions of marriages in this respect. > Marriages entered into without observing these rules were by these Placards declared null and void, and in certain Provinces the cele- bration of such marriages was considered a punishable ofi'ence {p). [m) Fock. Andr., Bijdragen, i., HI ; i.. Ill, 142, and the authors quoted bj' Het Oud Ned. 15. E., ii., 154. him ; II. Hiouwer, de Jure Conn., ii., («) Fock. Andr., lor. cit., aiid the 9, 7; J. Voet, Ad Pand., xxiii., 2, 29. authors quoted by him. {]>) Fock. Andr., Bijdragen, i., 1G8 {o) Cf. p. 22 ; Fock. Andr., Bijdragen, — 177. RELATIVE PROHIBITIONS. 87 Of these Placards those published in Holland, Zeeland, and ITirecht in 1580, 1583, and 1584, and the Echtreglement published by the States-General in 1656 deserve special notice. In Holland the subject was regulated by the Politieke Ordonantie of April 1st, 1580 (q), ss. 5 to 11 ; in the Province of Zeeland by the (Zeeland) Politieke Ordonantie of February 5th, 1583, ss. 13 — 20, and in Utrecht by the Ordinance of 1583, ss. 15, 23. The rules laid down by these ordinances were to the following effect. Marriage was forbidden (a) in the case of blood relations (1) in the direct line (ascendants and descendants) ad infinitum; (2) between collaterals, to the third degree, whether of whole or half- blood ; (b) in the case of relatives by marriage within the same degrees between the husband and the relations by blood or by marriage within the prohibited degrees of his deceased wife, and between the wife and the relations by blood or by marriage within the prohibited degrees of her deceased husband. The "Echtreglement" of March 18th, 1656 (/), which was in force in the Provinces and countries placed under the direct administration of the States-General, contained similar provisions (a). Marriages were not only forbidden with brothers' or sisters' children, but also with their descendants ad infinitum, because it was said that in this respect brothers and sisters took the place of parents (6). Marriages contracted in violation of these rules were considered incestuous marriages. The marriages themselves were null and void and could be declared to be so against the will of the parties. The persons who contracted them were punishable for the crime of incest (c). {H) Gr. PI., iii., col. 503. 29 — 36; H. Brouwer, de Jui-e Conn., ii., (r) Gr. PL, ii., col. 2429. 10—15 ; Lybreghts, Eedeu. Vertoog, i., [a] Ss. 55 — 68. 11,9; v. d. Linden, Koopmansliandb., (6) On these prohibitions generally i., 3, 6, on pp. 21, 22. of. Grotius, Introd., i., v., 5 — 13; (t) Van Leeuwen, R. H. E., iv., Regtsgel. Obs., iv., Obs. 2, 3 ; 30 Vra- 37, 9 ; II. Brouwer, de Jure Uonn., ii., gen, p. 15; Schorer, Notes ad Grot. 4, 17; Lj^breghts, Eeden. Vertoog, i., Introd., loc. cit., pars. 12 and 13 ; Zurck, 1 1, 10 ; J. Voet, Ad Pand., xxiii., 2, 15, Codex Bat. voce Houwelyck, pars. 20— 39 ; xlviii., 5, 19; v. d. Linden, Koop- 24 ; van Leeuwen, E. H. E., i., 14, 12 manshandboek, ii., 7, 8; Fock. Audr., and 13 ; J. Voet, Ad Pand., xxiii., 2, Het Oud Ned. B. E., ii., 155. 88 CAPACITY FOR MARRIAGE ROMAN-DUTCH LAW. The authorities who were entitled to join couples in matrimony were bound to refuse to allow the banns to be pul)lished in cases of doubt, and refer these to the States for decision (d). The States-Provincial could grant dispensations from these rules, and in cases where persons were related to each other by marriage only, the requests for dispensation were numerous. They were often granted in the case of Jews whose relationship, according to Hebrew law, would not prohibit their marriage, though it would according to the law of Eome (e). The prohibition of spiritual relationship was not taken over by the Reformed Church nor by the civil authorities (/). The provisions of the Political Ordinance, April 1st, 1580, were in force in the colonies of the East and West Indies (g). (b) DifiFerence of Religion. — As already seen, the Catholic Church prohibited marriages between Christians and non-baptised persons, e.g., Jews, and, in later times, between Catholics and heretics, the former ones being null, the latter only " illicit." In some Provinces the civil authorities legally sanctioned these prohibitions, while several more or less vexatious restrictions were enacted regarding marriages between Protestants and Catholics (/<)• ((Z) Politieke Ord., 1580, ss. 12, 13. Difficulty arose as to the meaning of art. 12, which ran as follows, viz. : "And whereas in entering into and contracting holy matrimony special pains shoiild be taken that it takes place in all decency and that all of the said degi-ees ... be prevented. Thus . . . the said States order that if any persons asked for the l)ann8 to be published in order to be united, who nevertheless the deputies of the magistrates or Church ministers would consider that with regard to the said decency and in order to jirevent con- fusion of degrees should not be united, that then the said deputies and Church ministers shall communicate this to the civil authorities and delaj' the said desired proclainatif)ns in order that in the meantime with knowledge of the case these may be allowed or refused, us ivill he /oimd necessari/ arairiling to the laws of God and the civil Jaws." Some interpreters understood by the words ' ' civil laws " the Roman laws, and deduced from the italicised words above that these and the laws of Grod had subsidiary power. H. Brouwer, de Jure Conn., ii., 16 ; J. Voet, Ad Pand., xxiii., 2, 33 ; HoU. Cons, ii.. Cons. 256; iii.a, Cons. 107; iv., Cons. 13 ; v.. Cons. 106. For the con- trary view, see Pock. Andr., Bijdragen, i., 176. (e) Pock. Andr., Bijdragen, i., 175 — 177; Zurck, Cod. Bat., voce Hou- welj-ck, pars. 21, 24; J. Voet, Ad Pand., xxiii., 2, 37—39 ; II. Brouwer, de Jure Conn., ii., 16. (/) II. Brouwer, de Jure Conn., ii., S, 4; J. Voet, Ad Pand., xxiii., 2, 2. i)i Jin. {(j) Zurck, Cod. Bat., voce Ilouwelyck, par. 3<>. (//) Echtreglement, 1656, s. 50; RAVISHMENT AND ABDUCTION. 89 (c) Adultery. — It has l)een seen that the civil hiw proliihited the marriage of the person who had heen convicted of adultery and his or her accomplice (/), but that the Catholic Church did not prohiljit marriages between persons who had committed adultery, unless they had made promises of marriage to each other during the existence of the former marriage or the guilty persons had consjjired against the innocent spouse (A). This provision of the canon law was followed in the Low Provinces (/), though not everywhere to the same extent (m). The unsatisfactory condition thereby created and the impossibility of proof in most cases led the States of Holland and Zeeland, as well as the States-General, to prohibit all marriages between parties who had committed adultery, either after the death of the innocent party or after the dissolution of the former marriage (ii). Such a marriage, if contracted, would be considered null and void ab initio and independent of the fact when proof of the adultery was o])tained, whether before or after the marriage had been entered into, during the lifetime of these spouses or after their death (o). (d) Ravishment and Abduction. — Following the Roman and the canon laws, a man who committed the crime of ravishment or abduction of a girl was prohibited from marrying her, unless he was first pardoned and thus had expiated his crime (j>); but an Plakaat, 1752, in Gelderlaiid; Plakaat, July 18th, 1674. 1755, ill Holland, Gr. PL 543 ; Pock. Andr., Bijdragen, i., 177—180; Het Oud Ned. B. E., ii., 156; H. Brouwer, de Jure Conn., ii., 21 ; J. Yoet, Ad Pand., xxiii., 2, 26. (t) Dig., xxxiv.. 9, 13. (Ii) See ante, p. 23. (I) Groeuewegen, Leg. Abr., Cod. ix., 9, 27 ; Holl. Cons., iii.a, Cons. 52, 53; iii.b, Cons. 71, 72 ; iv., Con.s. 282. (m) Boel-Loenius, Dec. en Obs., p. 60 ; Pock. Andi-., Bijdragen, i., 180; Schrassert, Codex Geles. Zutf., i., s.v. Overspel, par. 1 ; Zurck, Cod. Bat., voce Houwelyck, n. 1. {n) Echtreglement, 1656, s. 83 ; Plakaat, States of Zeeland, Marcb 18th, 1666, s. 12; Plakaat, States of Holland, (o) J. Voet, Ad Paud., xxiii., 2, 27; Bynkershoek, Quaest. Jur. Priv., ii., c. 10; Grotius, Eegtsgel. Obs. i., Obs. 11 ; V. d. Keessel, Thes. Sel., Thes. 70 ; Pock. Andr., Bijdragen, i., 180, 181 ; Brouwer, de Jure Conn., ii., 18, 10; Zurck, Cod. Bat., voce Houwelyck, par. 25 ; v. d. Linden, Koopmanshandboek, i., 3, 1, on p. 22. (p) Cod. ix., 13, 1, 2 ; Polit. Ordin., Holland, April 1st, 1580, art. 18; Polit. Ordon., Zeeland, 1583, art. 33; Plakaat, States of Holland, Pebruary 25th, 1751, in fin.; Holl. Cons., iv.. Cons. 400, in fin.; Groenewegen, Leg. Abr., Cod. ix., 13 ; J. Voet, Ad Pand., xxiii., 2, 26 ; H. Brouwer, de Jure Conn., ii., c. 23 ; v. d. Keessel, Thes. Sel., Thes. 71. 90 CAPACITY FOR MARRIAGE ROMAN-DUTCH LAW. abduction of a minor or a person of full age whose parents were alive, with the girl's consent, did not render the marriage which followed null and void, as the consent of the parents could be given afterwards (). (b) Annus luctus. — South Africa. — The New Statutes of Batavia {q) Pereira, Joe. cit., ii., 1().'3, 104. No. 19 of 1907, s. 19; British Guiana, (r) S. 30. Indictable Offences Ordinance No. 18 (s) S. 31. of 1893, 3. S3. (a) Transvaal, Marriage Ordinance (i) In re Booysen (1880), Foord, 187. No. 3 of 1871, s. 10 ; Ceylon, Ordinance CONSANGUINITY AND AFFINITY. 95 provided that a widow should observe a period of three mouths after her husband's death before re-marrying and, in any event, should be certain not to be with child (c). An Ordinance of Governor de Mist at Cape Town in 1804 provided that a wddower should not re-niarry within three months after his wife's death, nor a wife within five months or within the period of probable pregnancy after her husband's death, om der eerbaarheid icille (d). No penalty is attached to the parties who contract a marriage disregarding this provision, nor is there any sanction j)rovided against a marriage officer acting in contravention of it. It is doubted whether this Proclamation is still in force in the Colony ((?). In the Orange Free State, a widower may not re-marry within three months after his wife's death, nor a widow within one hundred and eighty days after her husband's decease. No penal clause is attached to this jDrovision, but the marriage officer who jjerforms the marriage ceremony in contravention of it is punishable with a fine (/). In the Transvaal a widower may not re-marry within three months after his wife's death, nor a widow within three hundred days after her husband's death, unless special dispensation has been obtained from the Government (g). (c) Incapacity to Procreate Children. — No change has been made in the general law. 2. Relative Prohibitions. — (a) Prohibited Decrees of Consanguinity and Affinity. — South Africa (h). — Cape Colony. — Marriage of a widower with his deceased wife's sister has been allowed by Act 40 of 1892, provided that she is not the widow of his deceased brother. The Act only makes provision for widowers and not for bachelors, nor does it sanction the marriage of a widow with her deceased husband's brother («'). (c) Par. 25. (/) Law 26 of 1899, s. 13. {d) Par. 18. (g) Law 3 of 1871, s. 9. (e) D. Ward, Handbook to the (h) Regarding the common law, cf. Marriage Laws of the Cape Colony, Maasdorp, Institutes, i., 14 — 18 ; &c., pp. 6, 7; Vau Zyl, Judicial Nathan, loc. cit., pars. 381, 382 on Practice of the Cape Colony, 2nd pp. 213 — 217. ed., p. 444 ; Pari. Pap. (1903) Cd. (t) S. 2. Ex parte Daniel Moody 1785, 17. (1905), 21 S. C. R. 381. 96 CAPACITY FOR MARRIAGE ROMAN-DUTCH LAAA'. The Court has extended this i)rovision to the same degree of relationship hy affinity in other cases (k). The former marriage must have been dissolved by death (I), In order to constitute the crime of incest greater latitude is taken in the degree of relationship by affinity (m). Dispensation was sometimes granted by the Legislature acting as such and by means of a legislative act {a). Orange Free State. — The prohibited degrees of consanguinity and affinity are set out in Ordinance No. 31 of 1903 (o), which repealed chaj^ter xci. of the Law Book, but left the provisions unchanged. A marriage within the prohibited degrees is considered unlawful. Transvaal. — This matter is regulated by Act 3 of 1871 ( jj). Ceylon.— The prohibited degrees of relationship by blood or by affinity are set out in Ordinance 19 of 1907 (q). There is no objection to a widower marrying his deceased wife's sister (r). Carnal connection between persons who are related to each other within the prohibited degrees of relationship constitutes the crime of incest, punishable with imprisonment for a period not exceeding one year (s). British Guiana. — The degrees of relationship between two persons which render a marriage between them absolutely null and void are set out in the Marriage Ordinance No. 25 of 1901 (i). A marriage between a widower and his deceased wife's sister has been allowed by Ordinance No. 29 of 1902. (b) DiflFerence of Religion is no longer a bar to a marriage in the Colonies above-mentioned (a). (c) Adultery. — The general law has been maintained, ) Ss. 1, 2. Cape (1902), IS S. C. R. 342 ; S. A. (/)) S. 4. L. J., xix., 61. {(j) S. 17. (/) S. 4. (r) Valliamniai v. Aunamniai (1901), (m) Reg. r. K. (187o), 5 Buch. 98 ; 4 N. L. R. 8; Pereira, Laws of Ceylon, Kotze'.s translation of van Leeuweu's ii., 97, 98. E. H. R., iv., 37, 9. on p. 309 ; Tred- (s) S. 18. gold, Handbook of Colonial Criminal {t) Ss. 28, 29. Law, pp. 177, 17s. (a) As to Cape Colony, cf. D. Ward, (») LoedolfT and Smuts v. Robert- hir. cit., p. 6. REQUIREMENTS. 97 South Africa (h) ; in Ceylon though a married person who has been living in adultery can after the death of his wife lawfully marry the person with whom he so lived during the lifetime of his wife, the children procreated during such adulterous intercourse cannot be legitimated by the subsequent marriage of their parents (e). (d) Ravishment and Ahduction. — There has been no change in the general law. (e) Guardian and Ward. — South Africa. — Marriages between guardians and wards are not prohibited, though the sanction of the Court is considered to be required as long as the ward is under age((/). Ceylon. — Marriage between a guardian, and his son, with the ward seems to be prohibited (e). SECTION II. Law of France and the Derivative Systems of Quebec, St. Lucia, Mauritius and Seychelles, and the Modern Continental Systems. Eequirements. — (a) The Proper Age of the Parties. — As has been seen(f) by the civil law, the want of age avoided the marriage. The civil law required that the parties should be of the age of puberty, which in males was fourteen, and in females twelve years. Their cohabitation together after they had attained the age of puberty rendered the marriage valid ah initio. " Minorem annis duodecim nuptam, tunc legitimam uxorem fore, cum apud virum explesset duodecim annos " (g). In both these respects the law of France, before the promulgation of the Code Civil, and the laws of England, Ireland, and Scotland, adopted the civil law Oi). {b) Daniel V. Daniel (1887), 3 S.C.E. par. 377. Of. D. Ward, Marriage 231 ; King v. Bezuidenhout and Lynch Laws of C. C, p. 5. 18 E. D. C. 222; Van Zj), Judicial (e) Pereira, Laws of Ceylon, ii., 97. Practice, 2nd ed., p. 44(5. (/) See p. 7. (c) Karonchihami v. Angohami {g) Dig. xxiii., 2, 4. (1897), 2N. L. E. 276; 3C. L.E.93; (A) Pothier, Traite du Marriage, overruled by Eabot v. de Silva (1905), 8 s. 94 ; 1 Bl. Com. 424 ; Ersk. i., 6, s. 20 ; N. L. E. 82 ; (1909), 12 N. L. E. 140; Eraser, Husband and Wife, i., 51 ; affirmed in P. C. (1909), 12 N. L. E. MacNeill v. M'Gregor (1828), 2 Bligh 81 ; [1909] A. C. 376. (N.S.), 393, at p. 499. The action of {d) Maasdorp, Institutes, i., 18, 19; nullity, on the ground of non-age can Nathan, Common Law of S. A., i., be brought by either party, or by any M.L. 7 98 CAPACITY FOR MARRIAGE — CONTINENTAL SYSTEMS. Code Civil. — By the present law of France and Belgium a male under the age of eighteen and a female under the age of fifteen are incapable of marrying (i) ; but by a subsequent article (A) dispen- sations may be granted by the head of the State, enabling, on weighty grounds of expediency, persons to marry who have not attained those ages, A marriage contracted between parties, both or either of whom shall not have attained the age required by law, cannot be im- peached in either of the following cases (l) : — (1) If an interval of six months has been suffered to elapse without objection, after the parties, or such one of them as was at the time of the marriage under the age required by law, shall have attained the legal age of consent. (2) Wiienever the wife, being under the legal age of consent, shall conceive before the expiration of six months from the day of marriage. If the father, the mother, the ancestors, or the family council as the case may be, shall have given consent to a marriage contracted between parties, both or either of whom shall not have attained the age required by law, the party whose consent has been so given shall not be admitted to impeach the marriage on the ground of non-age (m). In Guebec (n) and St. Lucia (o) a man cannot contract marriage before the age of fourteen, nor a woman before the age of twelve years. Mauritius. — A male person under the age of eighteen, or a female under the age of fifteen, cannot contract marriage. But the Governor may for serious reasons authorise any person under the age above required to do so {}>). Seychelles. — The law is the same as that of Mauritius (q). Italian Law. — Under the Italian Civil Code, want of age, eighteen and fifteen for men and women respectively, renders a marriage oiiO who can 9h) No. 26 of 1890, 8.46. As to the pp. 222 — 223. l)rocedure for obtaining such dispousa- (i) Art. 144. tions, see s. 77. (/c) Art. 146. (2) No. 4 of 1893, sa. 41, 63. {I) Art. 165. AGE FOR MARRIAGE. 99 voidable (/•)• But a marriage contracted by persons of whom only one has not attained the prescribed age cannot be impugned (a) when sixmonths have elapsed since that person attained majority; (b) when the wife though still under age has become pregnant (s). A marriage contracted before the spouses or one of them has reached the requisite age cannot be impugned by ascendants or by the family council, or council of guardianship, who have given their consent to it (t). The consent of the King is necessary to the validity of marriages of the Eoyal princes and princesses («)• Spanish Law. — By the Spanish Civil Code w^ant of age is equally a ground of nullity (a). But the marriage of infants is considered as ratitied ipso facto and without the necessity of any express declaration if for one day after having attained the prescribed age they continue to live together without taking proceedings to impugn the validity of their marriage, or if the wife has become pregnant before reaching the prescribed age and before having lodged a claim of nullity (b). German Law. — The statutory age is twenty-one for the husband and sixteen for the wife(c'). But a distinction must be drawn between the impediment of insufficiency of age and the impedi- ment of the absence of the consent of the statutory agent (parent or guardian). Insufficiency of age, in so far as it produces incapacity for all legal purposes (i.e., under seven years), is an absolute impedi- ment ; and in so far as it merely produces statutory incapacity to marry (which is the case as regards males above the age of seven and below the age of twenty-one, and females above the age of seven and below the age of sixteen) it is a hindering impediment. The registrar (unless in the case of the female a dispensation has been obtained) cannot allow the marriage to take place, even if the parent or guardian of the intended spouse who is under age gives his consent; but if, notwithstanding this fact, the marriage takes place, it cannot be impugned on the mere ground of insufficiency of age, and it is therefore valid if the statutory agent has given his consent. The impediment of the absence of the consent of the (r) See art. 55. For the mode of (<) Art. 111. As to dispensation avoidance generally, see art. 104. from impediments, see art. 68. (.9) Art. 110. The disqualiacation (m) Art. 69. of want of age does not apply to (a) See arts. 83 (1), 101 (1). marriages of the Royal Family : (6) Art. 83 (1). art. 69. (c) S. 1303. 7—2 100 CAPACITY FOR MABRIAGE— CONTINENTAL SYSTEMS. statutory agent is an absolute impediment which applies to all persons under restricted capacity, including females above the age of sixteen and below the age of twenty-one. If any person of restricted capacity marries without the consent of his or her statutory agent or the leave of the Guardianship Court, the marriage is voidable (d). The necessity for the consent of a parent who is not the statutory agent and the effect of its absence are considered subsequently (e). Other Foreign Countries. — In Austria the age is fourteen. The age of the man and the woman in Holland must be eighteen and six- teen ; in Luxemburg eighteen and fifteen ; in Spain and Argentina fourteen and twelve ; and in Japan, seventeen and fifteen respec- tively. By Kussian law the marriageable age begins for women at sixteen, for men at eighteen ; and persons who have reached eighty years of age are forbidden to marry. Hungarian Law. — The marriage of persons under twelve years is void ; the marriage of persons under matrimonial age is voidable ; matrimonial age begins with completed eighteen years for men and completed sixteen years for women. Dispensation from the requirement of matrimonial age maybe obtained from the Minister of Justice. Swiss Law. — By the Swiss law of 1874, marriage cannot be contracted by males under the age of eighteen or females under the age of sixteen years. An action for nullity on this ground may be brought by the parent or guardian ; but it will not succeed after the spouse in question has attained the legal age, or if the wife has become pregnant, or if the parent or guardian has given consent to the marriage (/). The rules as to nullity in this case are in sub- stance preserved by the Code(r/). The Code raises the necessary ages to twenty and eighteen respectively, but gives a power of dispensation to the government of the canton of domicil for sufficient reasons, where the bridegroom is eighteen or the bride seventeen, and the parents or guardian give their consent (//). (b) The Consent of the Parties. — The validity of marriage, like that of every other civil contract, depends on the will and capacity (d) German Civil Code, es. 130;{, (/) Arts. 27, 52. 1304, 1323, 1331, 133G. {g) Art. 128. (f) Ss. 1305, 1308, 1323, 1330; see (/*) Art. 96. p. 111. CONSENT OF PARTIES. 101 of the persons to make it, and on its being made in the manner and with the solemnities required by law. The will or free consent of the parties is the very essence of the contract {i). Force or Fear. — Hence a marriage which takes place under the influence of force or fear is void (A). " Metum auteni non vani hominis sed qui merito et in hominem constantissimum cadat " was the rule of the civil law. But the subsequent voluntary cohabita- tion of persons, when the fear or force no longer exists, will give validity to the marriage (l). Error and Fraud. — There is also an absence of Mall or consent when either party marries under the influence of error or mistake, circa substantiani ; as in respect of the person or sex, but not when it regards the name, fortune, or personal qualities (/»). French Law. — It seems (/t) that in France error as to nationality, as to the condemnation of one spouse to a peine afflictive et infamante, as to religious belief and as to physical capacity for consummating the marriage on the part of the husband, or as to the ante-nuptial chastity of his wife, even if pregnancy has resulted from her misconduct, does not render a marriage annullable. Fraud is not, under the Code Civil, a ground for the annulment of marriage, except when it comes under the head of error as to the person (o). According to the French and Belgian Code Civil, a suit for nullity of marriage on the ground either of coercion or of error cannot be sustained, if there has been an uninterrupted cohabitation between the parties as man and wife for the space of six months, after the complete restoration of liberty of the person alleged to be under coer- cion ; or, in the case of error of person, after the error has been dis- covered (p). So a marriage celebrated between parties, where the (t) So Code Civil, art. 14(i, Aubry et {in) Perez, Cod. lib. 5, tit. 4, n. 9 ; Kau, i. 211. Wakefield v. Mackay (1S07), 1 Phill. (k) So Spanish Civil Code, art. 101 (2). 134 ; Brouwer, de Jiu'e Connub. c. 18, [l) Dig. iv., 2, 1. 6; Brouwer, de n. 6; Code Civil, arts. 180. Cf. Civil Jure Connub. lib. 1, c. 17, nn. 6, 7; Codesof L.C.,art. 148,St.Lucia,art.82. Perez, Cod. lib. 5, tit. 4, n. 9 ; Van (n) See Baudry-Lacan., ii., pp.231 Leeuwen, Ceus. For., part 1, lib. 1, et seij., vrhere the authorities are c. 13, nn. 6, 7 ; Harford v. Morris collected. (1776), 2 Hagg. C. R. 423 ; Portsmouth (o) Baudry-Lacan.,«j;oc. cit., p. 298. ?^ Portsmouth (1828), 1 Hagg. E. R. (/>) Art. 181. Cf. Civil Code of L.C., 355; Christ. Dec. ii., Decis. 114. art. 149. 102 CAPACITY FOR MARRIAGE C(^NTIXENTAL SYSTEMS. free consent {q) of both parties, or that of either of them, shall be wanting, or where there has been an error of the person (?■), can onl}^ be impeached by the parties themselves, or by that one party whose consent has not been free, or on whom the imposition has been practised (s). Italian Law. — The Italian Civil Code provides for the impeach- ment of a marriage upon grounds of absence of consent or error as to the person {t), but not if there has been continuous cohabitation during a month after the spouse having the right to institute pro- ceedings recovered his or her liberty or became aware of the error (u). German Law. — Under the German Civil Code the validity of a marriage may be impugned, i.e., the marriage is voidable (a), by a spouse who either did not know that he was taking part in a marriage ceremony or knowing that it was such did not intend to declare his consent to the marriage, or by a spouse who has made a mistake as to the person or essential personal qualities of the other spouse (h) ; or by a spouse who has been induced to marry by wilful deception as to essential circumstances, excluding deception as regards property (c) ; or by the spouse who has done so under the influence of unlawful threats ((7). Proceedings must be instituted within six months from the discovery of the error or of the fraud or of the removal of the influence of threats (c). The validity of the marriage cannot be contested after its dissolution unless that has been brought about by the death of the spouse not having the right to avoid a voidable marriage (/). Austrian Law. — A spouse who has kejDt silence as to his or her incapacity to enter into marriage on account of want of business capacity or has falsely pretended to have the required consent cannot impugn the validity of the marriage ; he or she also loses ((/) Under the Frencli Civil Code, tending to belong to a noble family), moral, as well as physical, violence (s) Code Civil, art. 180; Civil Codes vitiates consent : Laurent, D. C. F. ii., of L.C., art. 148, St. Lucia, art. 82, p. 402, 6. 303 ; Aubry et llau, v., p. Go, {t) Art, 105. n. 3. (it) Art. 106. (?) According to the better opinion, (a) S, 1330, though there has been much con- (h) S. 1333, troversy on the point, the rule stated (r) S, 1334. in the text applies whether the eiTor (d) S. 1335. has been as to physical identity or (e) S. 1339. civil personality : see Baudry-Lacan,, (/) Ss, 1337, 1338. ii., pp. 304 et seq., 1903, J. 841 (pre- MENTAL DISORDER. 103 the right to impugn it if be or she has contracted the marriage after learning of the impediment. Reasonable fear, especially abduction, or mistake as to the person are also impediments (g). The Hungarian law adopts a similar rule. Spanish Law. — The Spanish Civil Code declares a marriage null on the grounds of error as to the person, force or serious fear (h) ; or of its being contracted by a ravisher with the person ravished while under his power (?)• Proceedings can be instituted only by the spouse who has suffered the injury ; they are barred, and the marriages become valid if the parties have lived together for six months since the discovery of the error, or since the violence or cause of fear has been removed or since the party abducted has recovered her liberty (k). Swiss Law. — By the Swiss law of December 24th, 1874, no marriage is valid without the free consent of the spouses, and the presumption of consent is excluded by compulsion, fraud, or error as to the person. In such cases the marriage can be annulled at the suit of the injured party, unless three months have elapsed since he or she has acquired complete freedom or since the discovery of the error (I). Under the Code error, fraud and duress are grounds of relative nullity (in). Mental disorder at the time of marriage is expressly recognised in many systems as an incapacity for marriage, e.g., France (/(). German Law. —By the German Civil Code, a marriage is void when one of the spouses at the time of its celebration was under incapacity, or was in a state of unconsciousness or under temporary mental disorder. But the marriage will be regarded as valid ah initio if, before a declaration of nullity or of dissolution is made, the spouse whose disability was the ground of nullity ratifies it after the cessation of such ground of disability (o). Austrian Law. — Persons who are insane or mentally defective cannot contract marriage, nor can persons of restricted capacity owing to minority without the consent of their lawful father or the Guardianship Court {})). ((/) C. C, arts. 119, 57 — o9. of wliicli are stated below; see p. 234. {h) Art. 101 (2). (") C. C, art. 146 ; Aubry et Eau, (i) Art. 101 (3). v., pp. 10-12. {k) Art. 102. (o) S. 1325 ; as to incapacity, see {I) Arts. 26, 50. s. 104. (ni) See arts. 124 — 126, the provisions (^) C. C, arts. 49 — 53. 104 CAPACITY FOR MARRIAGE CONTINENTAL SYSTEMS. Italian Law. — By the Italian Civil Code, persons who are placed under guardianship on the ground of mental infirmity are pro- hibited from marrying (q), and such a marriage is voidable at the option of the person placed under guardianship or his guardian, the family council, or the public procurator (/). If such guardianship is revoked, and cohabitation is continued for three months after such revocation the marriage is no longer voidable (/). Spanish Law. — The Spanish Civil Code disqualifies for marriage persons who at the moment of contracting marriage have not the full use of their reason (s). A marriage contracted in contravention of this rule may be annulled at the instance of the spouses, the procurator-fiscal, or any interested party (t). Mental infirmity is also a ground of opposition to a marriage (u). Swiss Law. — Lunacy or imbecility is a ground of nullity, under the existing law, to be enforced by the public authority (ic). The Code provides that no person shall marry who is not capable of discernment, that is to say, who is deprived of the power to act reasonably by reason of immature years or of mental disease or weakness, drunkenness or similar conditions {x), and that persons of unsound mind shall be in every case incapable of marriage (y). Mental disease or permanent incapacity of dis- cernment is a ground of absolute nullity (Nichtigkeit) (z) ; incapacity at the time of celebration from a temporary cause is a ground of relative nullity (AnfecJitharkeit) (a). By the law of Russia, for eft'ecting a legal marriage, the free consent of both parties entering into a matrimonial union is required. Marriages concluded by constraint, or if one or both of the parties are insane, and therefore deprived of their free will, are liable to invalidation ; and persons proved to be guilty of exercising {q) Art. 61. Curti, No. 2381. (r) Art. 112 ; see also art. 83. (.»■) Art. 16. (s) Arts. 83 — So, and see 45. (?/) Art. 97. (t) Art. 102. (z) The action of nullity in such (m) See arts. 97, 98. cases may be brought by the competent (w;) Federal Law of ^larriage, arts. 28, public authority, or by any person who 51. Other persons interested have also has an interest : art. 121. a right of action to forbid the celcbra- (a) Arts. 120, 123; and see below, tion : Uess and others v. Kunz and pp. 233, 234. Knecht(1879), Entsch. Bundes. v. 258; CONSENT OF THIRD PARTIES. 105 constraint, even if they are parents of the parties, are Hable to criminal prosecution. (c) Consent of Third Parties.— France — Old Law.— In France, under the Ordinance of Blois, art. 40, and the Declaration of Louis XIII. , November 26th, 1639, it has been considered that the marriage of minors without the parents' consent was void (h). If a son should marry before he had attained his thirtieth, or a daughter before she attained her twenty-fifth year, without the parents' consent, they were subject to be disinherited, although the marriage itself would be valid (c). Code Civil. — According to the present law of France, a son and a daughter who shall not have completed their twenty-first year are incapable of contracting marriage without the consent of their father and mother; in case of disagreement, the consent of the father alone shall be sufficient {d). If either parent be dead, or be so situated as to be under an impossibility of expressing consent, the consent of the other parent shall be sufficient (e). The provisions in the two last paragraphs api^ly to natural children legally acknowledged (/). If both parents be dead, or be so situated as to be under an impossibility of expressing consent, the consent of the grandfathers or grandmothers shall be substituted for that of the parents ; in case of disagreement between grandfather and grandmother of the same line, the consent of the grandfather alone shall be sufficient (^). If a disagreement exist between the two lines, the grandfathers and grandmothers, or either of them, as the case may be, of the one line approving, those of the other, or either of them, disapproving, such difference of opinion shall imply consent (g). Between the ages of twenty-one and thirty children are obliged to obtain the consent of their father and mother ; but if this is refused he or she must request it by a notice, as specified in art. 154 {h). If the consent is not given within thirty days the marriage {h) Potiier, Traite du Manage, s. 326. (e) Art. 149. Baudry-Lacau., ad Ivc. cit. (/) Art. 158, as modified by art. 13 (c) Pothier, ihid. of the law of June 21st, 1907. ((/) Art. 148 of the Civil (bde, as (y) Art. 150. modified by art. 6 of the French (A) See infra. law of June 21st, 1907. 106 CAPACITY FOR MARRIAGE COKTINENTAL SYSTEMS. may take place without it (i). Prior to the law of June 21st, 1907, by which the above provisions were enacted, a respectful and formal act {acte respectueux) was required to be drawn up and addressed to the parents in the same way, but this was necessary up to anj' age so loncf as the party requesting the consent had ascendants in the direct line {j). \ Where there is disagreement as to a marriage between parents who have been divorced or judicially separated, the consent of the parent for whose benefit the divorce or separation has been pro- nounced, and who has obtained the custodj- of the child, is sufficient {k). This rule was laid down by the law of June 20th, 1896, to meet cases of hardship caused by the arbitrary refusal of consent by a father against whom a decree of divorce or separation had been pronounced (/). Art. 6 of the law of June 21st, 1907, amending art. 152 as altered by the above law, provides for the possibility of both of these con- ditions not being fulfilled. In that case the parent who gives his or her consent can apply to the Court for the consent of the other parent. The notification prescribed by art. 151, is, under the law of June 21st, 1907 {m), to be made b}^ one notary onl}-, without the concurrence of a second notary or of witnesses, instead of, as under the former law, either by two notaries or by one notary accompanied by two witnesses (m)- The act, vised for stamp duty and registered free, is to state the Christian names, surnames, domicils, and residences of the future spouses, and of tlieir i^arents, as well as the place where the (i) Art. 151, as enacted bj' the law were not obtained on the formal act of of June 21st, 1907. respect, the party was at liberty to pro- (y) The original arts. 152, 153, ceed to the celebration of the marriage, provided that — (1) from the age of at the expiration of one month from capacitj' to contract marriage up to the time of presenting such act of the completion of the thirtieth year in respect: art. 153. The law of June the case of sons, and the twenty-fifth 2()th, 1896, amended art. 152andmade year in that of daughters, the marriage the giving of one acte respectitetir suffi- should not be celebrated if the consent cient as in art. 153. of parents was withheld until the expiry (/.-) Law of June 20th, 1896. of one month after the last of throe acts (/) Lois Annotes, 1896, p. 121; of respect, separated fi'om each other Baudry-Lacan., ii., p. 104. by intervals of a month (art. 152) ; (2) (m) Art. 9, re-enacting art. 154 of after the age of thirty years complete, the Code, both for sons and daughters, if consent CONSENT OF THIRD PARTIES. 107 marriage is to be celebrated (u). A clause is to be inserted in the act, that it is made for the purpose of obtaining the parents' consent, failing which, within thirty days, the marriage will be celebrated (n). In case of the absence (o) of the parents to whom the notice provided for by art. 151 should be given, it shall be lawful to pro- ceed to the celebration of the marriage, upon producing the final judgment declaratory of absence ; or if there be no such judgment, on producing the interlocutory decree, directing an inquiry (|)) ; or else, if there has, as yet, been pronounced no decree on the subject, either interlocutory or final, upon producing an act of notoriety, drawn up by the jur/c de paix of the place where such parents had their last known domicil (q). This act of notoriet}' shall contain the declaration of four witnesses to the fact of absence, such witnesses to be summoned under virtue of his ofiice by thejuge de ixi'ix{y). It is not necessary to produce the acts of death of the parents of the future spouses, when the grandparents for the branch to which they belong attest that fact, in which case mention of their attesta- tion should be made in the act of marriage (s). In default of such attestation, the parties, if majors, may proceed to the celebration of the marriage on their declaration and oath that the place of decease and. that of the last domicil of their ascendants are unknown to them (s). The consent of the conseil de famillc (t) is required b}^ orphans who would need the consent of their parents if they were alive (?<)• A natural child who has not been acknowledged, or who, having been so, has lost his parents, or whose parents are incapable of exjDress- ing their consent, cannot before completing his or her twenty-first year, marry without the consent of the conseil de famille{x). (n) See note (m), p. 106. establishment : art. 102. (o) "Absence " is defined in art. 115 (?•) Ai't. 155. And see also, as to of the Code Civil as follows : "When a formalities, Law of June 20th, 1896, person has ceased to appear at the and June 21st, 1907. 2)lace of his domicil or residence, and (s) Art. 155. no news has been received of that {t) The conseil de famille is com- persou for four years, the interested posed of a minimum of six persons of parties may apply to the Coiu-t of the orphan's family, three being taken First Instance for a declaration of from the father's and three from the absence. mother's side, and presided over by the (|)) Art. 116. y»(/e(Ze/;a/.>: of the locality. Code Civil, [q) The "domicil" of every French art. 407. citizen as regards his civil rights is at {ti) Code Civil, art. 160. the place where he has his principal (.r) Art. 159, as modified by art. 14 108 CAPACITY FOR MARRIAGE — CONTINENTAL SYSTEMS. Belgium. — By Belgian law (a), if the parties to be married are over twenty-one years of age, they must by a respectful request demand the consent of their parents to their marriage. If this consent is not given the i)arlies have the right to marry after one month's delay, but the parents have the right to lodge an opposi- tion to the marriage and thereby have it postponed while the children are under twenty-five years of age. After that age the parents have no right to lodge an opposition against the marriage. Quebec. — Children who have not reached the age of twenty-one years must obtain tlie consent of their father or mother before contracting marriage ; in case of disagreement, the consent of the father suffices (/>). If one of them be dead, or unable to express his will, the consent of the other suffices (c). A natural child who has not reached the age of twenty-one years must be authorised before contracting marriage by a tutor ad hoc, duly appointed for the purpose {d). If tliere be neither father nor mother, or if both be unable to express their will, minor children, before contracting marriage, must obtain tlie consent of their tutor, or, in cases of emancipation, their curator, who is bound before giving such consent to take the advice of a family council, duly called to deliberate on the subject {e). Respectful requisitions to the father and mother are no longer necessar}'^ (/). St. Lucia. — The law is identical with that of Quebec ((/). When any person whose consent is necessary to a marriage is absent, insane, or otherwise incapable of consenting or refuses consent, the Judge may on petition give valid consent (//). Mauritius. — A son under the age of twenty-five, or a daughter under the age of twenty-one, cannot contract a marriage without tlie consent of his or her father and mother ; in case of disagree- ment between the parents, the consent of the father is aufticient (/). If either parent is dead, incapable of manifesting his or her will, or absent from the Island, the consent of the other is sufficient (/'). But a person of twenty-one years or more whose father and mother of the law of June 2l8t, 1907. Prior (e) Art. 122. to the law of 1907, a guardian ad hoc (./') Art. 123. had to be specially appointed. [g) Arts. 85—88 of C. C. of St. (a) April :5(>tli, ISiXi. Lucia. {h) C. C. of L.C., art. 11!». {h) Art. S!». (f) Art. 120. (0 No. 2(5 of 1890, s. 52. {,!) Art. 121. CONSENT OF THIRD PARTIES. 109 are dead, or incapable of manifesting their will, or absent from the Island, does not require the consent of any person to contract marriage (A-). A minor may, in such a case, marr^'with the consent of his or her grandfather and grandmother (/). When there is disagreement between the grandparents the consent of the grand- father is sufficient ; if there are ancestors in both lines, and there is disagreement between the two lines, such disagreement will be equivalent to a consent, and the marriage may take place (/). When there is no grandfather or grandmother the marriage may take place with the consent of a family council (in). The above provisions (n) apply to legitimate children only (o). A natural minor child cannot marry without the consent of the parent by whom he has been acknowledged, or of both parents if he has been acknowledged by both (p). In the latter case, if there is disagreement, the consent of the father is sufficient ; if the father has been refused the guardianship of the natural child, the consent of the guardian is also required (^j). When both parents have acknowledged the child and one of them is dead, or incapable of manifesting his will, or absent from the Island, the consent of the other is sufficient (q) ; or if both parents are dead, or incapable, or absent, or the child has not been acknowledged, or acknowledged only by one parent who is dead, incapable, or absent, the consent of a stipendiary or district magistrate is sufficient (r), A natural child who is twenty-one years of age or more does not require any consent (s). The Chief Judge may sanction the marriage of a minor, where such consent is unreasonably withheld by any parent, guardian, or family council (i). Seychelles. — The law is the same as that of Mauritius {u). Spanish Law. — The law of Spain prohibits the marriage of any minor, without the prescribed consent (a), viz. : (a) In the case of (k) S. 53. (o) S. 54 (.3) (/) S. 54 (1). (jO S. 55 (1). (m) S. 54 (2}. If the minor has not (7) S. 00 (2). six relatives qualified to form a family (r) S. 00 (3). council or is too poor to pay the («) S. 00 (4). As to the marriage expense of summoning one, the district of minor wards and the Protector of magistrate of the district in which the Immigrants, see ss. 56, 59 (1). minor resides may either authorise {t) S. 59 (2). the marriage or appoint a guardian (u) No. 4 of 1893, ss. 47 — 54. ad hoc to do so : s. 57 (1). (a) C. C, art. 45 (1). (n) I.e., ss. 52—54. 110 CAPACITY FOR MARRIAGE CONTINENTAL SYSTEMS. legitimate children, of the father, or, if he is dead or under dis- abiUty, of the mother, the paternal or maternal ancestors, and on their default, the family council successively ; (b) in the case of natural children, acknowledged or legitimated by Eoyal decree, that of the person recognising or legitimating them, and of their ascendants or of the family council in the order indicated under (a) ; (c) in the case of an adopted child that of the adoptive father, or, on his default, of the natural family to which the child belongs ; (d) in the case of other illegitimate children, the consent of the mother when legally known, and of the maternal ascendants in the same case; in default of both, of the family council; (e)in the case of foundlings, the consent of the head of the house in which they are placed [b). Major children are obliged to require the consent of their father, and in default of him of their mother, to their marriage. If they obtain no answer, or if the answer is unfavour- able, the marriage cannot be celebrated till the expiry of a period of three months from the request (c). No person called upon to give his consent is bound to indicate the reasons for which he grants or refuses it, and there is no remedy in case of refusal (d). A marriage entered into in contravention of the above prohibition is valid ; but the contracting parties subject themselves to the following rules, without prejudice to the provisions of the Penal Code : — 1. The marriage is deemed to be contracted with an absolute separation of property ; each spouse preserves the property and administration of all the goods belonging to him or her, and keeps the income or revenue arising from them, subject, however, to the obligation of contributing to the household expenses. "2. Neither spouse can receive from the other anything by way of donation or testament. 3. If one of the spouses is an unemancipated minor, the right of administering his property will only pass to him on his attaining majority. Till then he has only a right to aliment not exceeding in amount the income of his property (^')- Italian Law. — The Italian Civil Code provides that a son who has not completed his twenty-fifth and a daughter who has not com- pleted her twenty-first year cannot marry without the consent of the father and mother. In case of disagreement between the {h) Alt. Hi. ((/) Art. 49. (c) Arts. 47, 48, proof of asaont. (e) Art. 50. CONSENT OF THIRD PARTIES. Ill parents, the consent of the father is sufficient. If either is dead or unable to consent, the consent of the other is sufficient. If neither parent is aUve or able to consent, other persons are substituted for that purpose, but the consent is only required in the case of persons who have not attained twenty-one years. Provision is also made for the case of adopted or recognised natural children (/). In the case of princes and princesses of the Koyal House the consent of the King is alone required {g). An appeal lies against the refusal of consent to the Court of Appeal in all cases other than the one last mentioned. A son of full age must bring the appeal himself ; a daughter or minor child is represented by relations by consanguinity or marriage or the Public Prosecutor. The appeal is heard without counsel or solicitor with closed doors, and no grounds are assigned for the decision (/i). In Germany a person under the age of twenty-one, though declared to be of full age, if legitimate, requires the consent of his father, and if illegitimate that of his mother, and in the case of the father's death the mother replaces him. If the parent is not the statutory agent, the consent of the statutory agent is also required. The absence of the parental consent only creates a hindering impediment, but the absence of consent of the statutory agent makes the marriage voidable. The parental consent, as well as the consent of the statutory agent, may in certain specified events be replaced by the leave of the Guardianship Court (i). Hungarian Law. — Consent of parent and guardian is required for a spouse who is under full age (twenty-four years). The absence of consent makes the marriage voidable on the suit of the guardian authorit}^, unless consent has been given subsequently. Austrian Law. — By the Austrian law persons who are under twenty-four years of age, or are of full age but without business capacity, in order to marry, require the consent of their father, or failing him, the consent of their guardian and the Guardianship Court (A:). A foreign minor who desires to marry in Austria, and cannot produce the requisite authority, must obtain the ajipointment of a legal representative by an Austrian Court, who must declare to the (/) Arts. 63—66. (i) Ss. 1305, 1308-1323, 1330. Ig) Art. 69, {k) C. C, arts. 48—50. (A) Art. 6V. 112 CAPACITY FOR MARRIAr4E CONTINENTAL SYSTEMS. Court his consent or dissent from the marriage. If a minor or a person placed in another person's charge is refused consent to marry, and the marriage is thereby hindered, they have the right to apply to the Court. Consent can be refused on the grounds of want of necessary income, notorious immorality, infectious disease, or impotence (/). Swiss Law.— The consent of the parent enjoying parental power is required in all cases of the marriage of minors. If the parents be dead or incapable of giving an expression to their will the consent of the guardian is required, and an appeal against the refusal of consent by a guardian lies to the competent guardianship authority. No action for the annulment of a marriage on account of the want of a necessary consent may be brought except by the persons whose consent is necessary, or after the spouse has attained majority (//<). Under the Code persons who are not of full age or are interdicted cannot marry without the consent of both parents, or of the one who has the parental power, or of their guardian (»). Russian Law. — In order to contract a legal marriage it is necessary to obtain the permission of the parents of the contracting parties ; but a marriage concluded without the permission of the parents of the parties cannot be annulled on that account alone, but the minister of religion who solemnized the marriage is liable to prosecution. ^ Prohibitions. — 1. Absolute. — (a) An Existing Valid Marriage. (a) Bigamy. — In all systems an existing marriage makes void any marriage subsequently contracted (o). Thus by the German Civil Code a marriage is void if contracted during the existence of a previous marriage of one of the spouses ( j>). An existing marriage is also an impediment under the Spanish Civil Code (q), and operates as a ground of nullity (r). This rule is only qualified in the case of putative marriages, or marriages contracted in good faith. Putative Marriages. — This principle has been derived from the (/) Arts. 51—53; see ss. 1!K)— 192of Italy, C. C, art. 56. the law of August 9th, 1851, 11. S. Bl., {p) Ss. Vm), 1326. No. 208. (v) Art. S3 (5). (m) See Swiss Federal Law of (r) Art. 101(1). A marriage, whether Marriage (1874), arts. 27,53. canonical or civil, produces no civil (fi) See above, Vol. 11., pp. 506, 507 ; effects if one of the i)arties was at the Civil Code, arts. 95, 99, 274, 285 — 287, time of its celebration already legally 32-J — 326. married : art. 51. (o) A'.y., France, C. C, art. 147 ; EFFECTS OF A PUTATIVE MARRIAGE. 11 3 canon law, for though the Roman hiw granted relief in certain cases by recognising the children born from a second bigamous marriage under certain circumstances as legitimate (s), the Church was the first to grant relief to the parties themselves and to give an opportunity of recognising the second marriage as valid by the civil law. It is unknown to the law of England or Ireland. It is admitted in France (0, Germany (?^), Spain [v), Italy (x), and in other foreign Codes (2/).^>. -- Code Civil. — The Code Civil provides that a marriage which has been declared null produces, nevertheless, civil effects, as regards both the spouses and their children, if it has been contracted in good faith {z). If the good faith has existed only on the part of one of the spouses, the marriage produces civil effects only in favour of that spouse and of the children {a). It is sufficient under French law if good faith has existed at the time of the celebration of the marriage (b), and the provisions apply to all annullable marriages, whether defect of form or defect of subs-tance is the ground of nullity (c)." X Effects of a Putative Marriage. — Children born during the marriage or conceived before its annulment, are deemed to be and have the rights of legitimate children, even if one parent only has been of good faith {d). It operates as a suhseqnens matrimoninm for purposes of legitimating children (e). If both spouses have acted bond fide, the minor spouse has the benefit of the emancipation which marriage confers ( /) . The parties have all the rights conferred by the puissance putcrneUe over the person and property of their children ((7), and their matrimonial contracts remain in force, on (s) See D., xxiii., 2, o7. p. 563, s. 360; Laurent, D. C. F., ii., [t) Code Civil, arts. 201, 202. p. 639, s. 505. (it) Civil Code, ss. 1344, 1345, 1699. (c) Baudry-Lacan., ii., p. 462 ; and (v) Civil Code, art. 69. see n. 1. (.c) Civil Code, art. 116. {d) Aubry et Eau, v., p. 49 ; Demo- {y) E.g., Switzerland, C. C, arts. lombe, iii., p. 565, s. 362. 133, 134. {,) Aubry et Rau, v., p. 50, n. 12; (2) Art. 201. Cf. Civil Codes of Baudry-I-acan., ii., p. 472; contra L.C., art. 163 ; St. Lucia, art. 133. Merlin, Eep. tit. Legitimation, s. ii., (a) Art. 202. Cf. Civil Codes of g. 2, n. 4 ; Toullier, i., s. 657. L.C., art. 164 ; St. Lucia, art. 134. (y) Aubry et Eau, i., p. 541, s. 129. {h) Baudry-Lacan., ii., p. 460; Aubry (y) Baudry-Lacan.. ii., p 474, et Eau, v., p. 48, n. 6 ; Demolombe, iii., M.L. 8 114 CAPACITY FOR MARRIAGE CONTINENTAL SYSTEMS. the footing of the state of things existing at the time of the judicial declaration of nullity (/«). The wife cannot, however, it seems (//), retain her husband's name. The reciprocal right of succession ceases, as between the spouses, from the declaration of nullit}' (i). Where one spouse only has been of good faith, that spouse alone has the right to the paternal jDOwer (k), to the benefit of the matri- monial conventions (/), and of any donation received from the other spouse by the marriage contract without any correlative right on the part of that spouse, as regards donations made to him or her, even if the donations contained in the marriage contract were expressly stipulated to be reciprocal {;m). As regards third parties, the putative marriage jDroduces, in favour of the spouse or spouses of good faith, the same civil effects as a void marriage. Thus (n), the wife who is of good faith may set up, as against third jjarties, the legal hypothec conferred on her by art. 2121 of the Civil Code, and she, or her husband, if he is the party of good faith, may take advantage of the nullity of acts executed by her, without marital or judicial authorisation. There are similar provisions in the other legislations (o). This rule is also applied in the case of Catholic marriages which are indissoluble. Thus in Austria a non-Catholic whose marriage has been dissolved can only marry a non-Catholic, and a jDerson who was not a Catholic at the time of his or her marriage and has afterwards become a Catholic and parted from a non-Catholic spouse cannot marry again during the lifetime of the other non- Catholic spouse (^>). (b) Annus Luctus. — Another impediment to marriage imposed on a wife is the time of mourning which must elaj^se after the dissolu- tion or annulment of a preceding marriage before she can re-nuirry, though this is never the ground of an absolute prohibition, French Law. — In French law a period of ten months from the (/() Baiidry-Lacan., ii., p. 474. {n) Baudiy-Lacan.,ii., lypAS'Set setj., (i) Aubry et Ran, v., j). 52, n. 17 ; wliere the consequences of the rule contra, Laurent, ii., p. 647, s. 511. under consideration are fully worked {k) AuLry et Eau, v., p. 53, n. 23. out. (/) Baudry-Lacan., ii., p. 477. (o) See Bui-ge, vol. ii., pp. 2(30, 330, (m) Aubry et Ban, v., p. 53, u. 20 ; 354. Demolombe, iii., p. 57(J, s. 376; (;/) Court decrees of August 4th and Laurent, ii., p. 64i>, s. 513. 26th, 1814, and July 17th, 1835. ANAD'S LUCIUS. 115 death of the husband or dissolution of the marriage by divorce is prescribed (^), as it is also in the laws of Holland (/•) and Hungary (s), German Law. — In German law the period is ten months from the date of the dissolution of the previous marriage, but this prohibition is merely in the nature of a hindering impediment, and may also be removed by dispensation. It ceases if before the expiration of the period she gives birth to a child (j). Austrian Law. — By the provisions of the Code on this subject, in the event of a marriage being declared null, or of the husband's death, the wife if pregnant cannot marry before the birth of the child, and if there is a doubt as to the pregnancy, not before the lapse of six months, but a dispensation may be granted, and the wife forfeits all her rights against the former husband's inheritance (it). Italian Law. — The Italian Civil Code contains similar provisions {x) to those of the German Code, with the additional proviso that the rule as to the ten months' limit does not apply in the case of the former husband's impotence. A woman who marries within the prohibited j^eriod, as also the registrar who celebrates the civil marriage, and the new spouse incur pecuniary penalties, and the woman loses all right of inheritance and donations from the first husband (a). Spanish Law. — A widow is prohibited from marrying during the three hundred and one days following the death of her husband, or before her confinement, if she was enceinte. The same rules apply to a woman whose marriage has been annulled, counting from the AqjJ of her legal separation from her husband {h). A dispensation from this prohibition may be granted (c) . A marriage contracted in contravention of this prohibition is valid, but the marriage is deemed to have been made with an absolute separation of goods ; neither spouse can take anything from the other by way of donation or testament (these two rules do not apply if an authorisation of the marriage has been obtained), and, if one of the spouses is an unemancipated minor, he or she Avill only have the right to the administration of his or her proj)erty on attaining majority. Until ('/) C. C, arts. 228, 296. (a) Art. 128. This impediment is {r) C. C, art. 91. dirimens as well as hnpediens : see (s) Marriage Law of 1894. arts. 85, 86, 104. \t) Ss. 13i:i, 1322, 1323, 1330. (6) Art. 45 (2). \n) Arts. 120, 121. (c) Art. 85. (cc) Art. 57. ] 1 6 CAPACITY FOR MARRIAGE CONTINENTAL SYSTEMS. then the minor has merel}' a right to aHment, the amount of which must not exceed the revenue of his or her property {d). (c) Impotence. — The physical impossibihty of consummating the marriage, or impotence, is under some systems of law another ground for annulling the marriage contract (f). From the opportunities which this cause of nullity affords for collusion between the parties the strictest proot is required. In countries adopting the canon law, suits for setting aside the marriage are not permitted to be entertained, except in those cases where the imperfection is paljjable, unless the parties have been in continued cohabitation for three years ; and when the proof of the defect is doubtful, a further cohabitation is enjoined {/). France. — Code Civil. — In France this cause of nullity was so scandalously abused that the Code Civil does not enumerate it amongst the other impediments to a lawful marriage, and, according to the balance of modern opinion, it is not a ground of nullity, whether the impotence is natural or accidental (g). ftuebec. — The Civil Code of Lower Canada provides (//) that " impotence, natural or accidental, existing at the time of the marriage, renders it null ; but only if such impotence be apparent and manifest. This nullity cannot be invoked by any one who has contracted marriage with the impotent jjerson, nor at any time after three years from the marriage." There is a similar provision in the Code of St. Lucia (/)• This impediment renders the marriage voidable, and not ipso fdcto void. The marriage remains, therefore, valid, unless it be set aside in the lifetime of the parties. Other Systems. — Permanent incurable impotence of one spouse proved anterior to marriage renders the marriage voidable at the instance of the other spouse under the Italian (A) and iSi^anish (Z) Codes. {d) C. C, art. 50. Sirey (1896), ii., 142. But see Sirey (e) Gieenstreet v. Cuinjiib (1M12), 2 (1901), ii., 303. See Baudry-Lacan., rhill. 10; Brown r. Brown (1828), 1 ii., p. 335, and decisions cited in n. 3 ; IJagg E. E. 523; Briggs v. Morgan ccmtra, N. v. N. (1808), C. Treves, (1S20), 2 Hagg. C. R. 324. Sirey, An. (1808), ii., p. 214 ; and cf. (./) Burge, 1st ed., i., 139, citing 8. C, Toullier, i., ss. 526, 526 ; ii., 80G. Ougbton, tit. 217 ; AylifPe's Parergon, (A) Art. 117. tit. Divorce ; and see Baudry-I.acan., (/) Art. 83. ii., pp. 47—49. (/.) Art. 107. {(J) I). V. 1). (1894), C. Nimes, (/) Art. 83 (3). CON-SANGUINITY AND AFFINITY. 117 German Law.— The Geriiiau Civil Code does not deal with impo- tence as a ground of nullity or voidability, but it enables a spouse who was under a mistake as to essential jDersonal qualities of the other spouse to obtain a declaration of nullity {ni) ; and this provision has been held to be applicable to cases of impotence in so far as such impotence is proved to be of a permanent character. On the other hand, the section does not apply to a case of mere sterility unless it can be shown that the spouse wishing to avoid the marriage would not have contracted it had he been aware of such sterility (»). The Hungarian law has a similar provision (o). Permanent imj^otence is a ground for nullity in Austria (jj). In Switzerland impotence does not render a marriage null, but is recognised as a cause of divorce by mutual consent (q). Under the Code it appears to give the injured spouse a claim to a divorce (r). 2. Relative Prohibitions. — (a) Degrees of Consanguinity and Affinity. — As already seen, marriages between parties related by blood or consanguinity (cognatio), or by affinity or relationship by marriage {((finitas), in the direct ascending or descending line, in in/initain, are prohibited by the civil and canon law (s). This pro- hibition prevents that confusion of civil duties which would be the necessary result of such marriages. The Codes of European and other countries concur in this prohibition (t). In the collateral line, the prohibition is confined to those who stand in certain degrees of consanguinity or affinity to each other. French and Spanish Law. — By the canon law, which, as decreed by the Council of Trent, was adopted in Spain and in France and Austria, the intermarriage of those related to each other in the fourth degree was prohibited, but in respect of this prohibition dispensations could be obtained. (m) S. 1333. (,) Art. 142. («) Seethe decisions of the Imperial (n) Dig. xxiii. 2, 1.53 ; xxxviii. 10, Coiu't referred to in Neumauu, Eecht- 1. 4, § 7 ; Baudry-Lacau., ii., pp. 41, sprechuug des E. G., vol. ii., pp. 386, 156; Pothier, Traite du Mariage, s. 387. 150; Gibson, Cod. 408— 415 ; Leviti- (o) Marriage Law of 1894, art. 54. cus, xviii. ; Harrison r. Burwell (1671), (jj) C. C, art. 60; and see Anon. 2 Yentr. 9; Vaughan's Eep. 224. (1893), 1895, J. 161. {t) See Civil Codes of France, art. (7) Eutscheidungen des Buudes- 161; Spain, art. 84(1) ; Italy, art. 58 ; gerichts (1877), iii. 114; Cuiti, No. Germany, s. 1310; Swiss Federal 2385. Law of Marriage, art. 28. 118 CAPACITY FOR MARRIAGE — CONTINENTAL SYSTEMS. B}' the law of Spain, marriage is prohibited between ascendants and descendants, collaterals by legal or natural consanguinity up to the fourth degree and legal or natural affinity up to the same degree (u) ; bat dispensations can be obtained for marriages between persons related within the third and fourth degrees (lawful) and connected by lawful or natural affinity collaterally (x). According to the present law of France, marriage is prohibited in the direct line between ancestors and their descendants, to the remotest degree, whether legitimate or illegitimate, as also between those related by marriage in the same degree (a). In the collateral line marriage is j^rohibited between brothers and sisters, whether legitimate or illegitimate, as also between those related by marriage in the same degree (//). Marriage is prohibited between uncle and niece, aunt and nephew (c). On serious grounds of expedienc}^ however, a dispensation from this last-mentioned prohibition and from those with regard to brothers-in-law and sisters-in-law, may be obtained {d). Quebec. — In the direct line marriage is prohibited between ascendants and descendants and between persons connected by alliance, whether they are legitimate or illegitimate ()Art. 162. It has been held that April 16th, 1832. As to the princi- the prohibition enacted by this article pies on which snch dispensations are ap])lics oven where the marriage pro- granted, see Circulars of May 10th, diioing the affinity is dissolved by the 1S24 (Sirey, 1829, ii., 285), and April divorce or death of one of the spouses : 28th, 1832 (Sirey, 1832, ii., 219). As De L. C. Paris, (1897), Siroy, 1900, ii., to the formalities, see Demolombe, 131. iii.. p. 164, s. 119. (c) Art. 103. As to whether this (>') Civil Code of L.C., art. 124. provision extends to grand-uncles and (/) Art. 125. aunts, and their grand-nieces and [y) Art. 126. CONSANGUINITY AND AFFINITY. 119 Other causes remain subject to the rules hitherto followed in the different Churches and religious communities. The right likewise of granting dispensations from such impediments appertains, as heretofore, to those wdio have hitherto enjoyed it " (It). St. Lucia.— The law^ is the same as that of Quebec (i), and a marriage solemnised in contravention of its provisions is null {k). Mauritius. — In the direct line marriage is prohibited between all ascendants and descendants, whether legitimate or natural, and between persons related by marriage in the same line (l) ; in the collateral line between a brother and sister, whether legitimate or natural, and between persons related by marriage in the same degree (/»)• But marriage may be legally contracted between a man and the sister of his deceased wife (/»). Marriage is further prohibited between a man and his niece, or a w'oman and her nephew (n). But the Governor may for grave causes authorise any such marriage (»). Seychelles. — The law is the same as that of Mauritius (o). Austrian Law. — By the law of Austria no valid marriage can be contracted between blood relations in the ascending or descending lines, brothers and sisters of the full or half-blood, first cousins, uncles and nieces, nephews and aunts, w'hether the relationship be legitimate or illegitimate (p). Affinity is also an impediment to marriage between a husband and his wife's relation or vice vrrsn (q). In the case of Jews the impediment of blood relationship between collaterals extends only to marriage between brother and sister, not to marriage between a sister and the son or grandson of her brother or sister ; and affinity is an impediment within the same degrees. German Law. — By the German Code marriages between relatives in the direct line, between brothers and sisters of the whole blood or the half-blood, as well as between relatives by marriage in the direct line, are void (/•). A marriage between persons one of whom has illegitimately cohabited with any ancestor or descendant of the (/() C. C. of L.C., art. 127. obtaiuing sucli dispensations, see s. {{) Civil Code of St. Lucia, arts. 77. 90—92. (o) No. 4 of 189:3, ss. 44—46, 63. {k) Art. 93. (p) C. C, s. 65. {I) No. 26 of 1890, s. 49. {q) C. C, s. 66. {m) S. 50. (r) Ss. 1310, 1323, 1327, 1330. {n) S. 51. As to the procedure for ]20 CAPACITY FOR MARRIAGE CONTINENTAL SYSTEMS. other, is prohibited, but this prohibition is merely in the nature of a hindering impediment (s). Italian Law. — B}' the ItaHan Civil Code marriage is prohibited in the direct line between ascendants and descendants, whether legitimate or natural, and between relatives by marriage of the same line (t). In the collateral line, it is prohibited between (1) brothers and sisters, legitimate and natural ; (2) relatives by marriage of the same degree; (3) uncle and niece, aunt and nephew (//). The King, for grave reasons, may grant a dispensation from im- pediments (2) and (3) above (j:-), and they are not applicable to the King or the Royal Family (a). A marriage contracted in con travention of the foregoing impediments may be impugned by the spouses, the nearest descendants, and all who have an actual and lawful interest {h). Swiss Law. — Marriage is prohibited between ascendants and descendants, brothers and sisters of the whole or half-blood, uncle and niece, aunt and nephew, whether the relationship be legiti- mate or illegitimate ; as also between j)arents-in-law and children- in-law, step-parents and step-children, adoptive parents and adoptive children (c). The cantons cannot extend the table of prohibited degrees (d). The annulment of a marriage on grounds of consanguinity or affinity is enforceable by the public authorities, but other persons interested may also sue (c). The Civil Code extends the prohibitions of marriages on the ground of affinity to the case of affinity caused by an invalid marriage, and forbids marriage between an adopted child and the spouse of the adopter, and between an adopted parent and the spouse of the adopted (/). Adoption. — Analogous to these impediments is the prohibition existing, in substance, in most Continental Codes, of intermarriage between persons united by the tie of adoption and their descen- dants (fi). (a) Gei-man C. C, s. 1310. Entscli. Buud., ii. 29, Ciirti, S66. (<) Art. 58. (<-) Federal Law of Marriage, art. 51 ; {ii) Art. 59. As to adopted relatives, Eutsch. Bund., xiii. 187 ; Curti, 2440. see art. 60. (/) Art. 100. (x) Art. 68. (,(/) See Civil Codes of France (art. (a) Art. 69. 318), Spain (art. 84 (5), (6) ), Italy [b] Art. 104. (art. 60), Germany (s. 1311), Swi.ss ('•) Federal Law of Marriage, art. 28. law of December 24tli, 1874, (art. 28), ((/) Tannaz /•. Canton de Vaud, Hungarian niairiage law (art. 18). DIFFERENCE OF RELIGION AND ADULTERY. I'iL (b) Difference of Religion. — The impediment founded on the difference of the religious creeds of the parties was adopted by the law of Spain, if the party was not a Christian (h). But no such impediment exists under the Spanish Civil Code(0. In Austria Christians and non-Christians cannot intermarry (A:) . ^ (c) Marriage of Adulterer and Adulteress. — French Law. — In France formerly such a marriage was not void unless the adulterous inter- course had been preceded or followed by a promise of future marriage (a) . By the Code Civil if a divorce had been decreed on the ground of adultery the guilty party was not permitted to marry with his or her accomplice, but this disability has now been removed by the law of December 15th, 1904 {h). Belgium. — The Belgian law does not allow a Belgian registrar to marry persons found guilty of adultery by judicial definitive sentences, but if such parties get married abroad or even in Belgium, the Belgian registrar can be fined, but the Courts would not, it seems, declare such marriage void. In Austria a marriage between persons who have committed adultery together is void, but the adultery must be proved before the marriage is contracted (c). Non- Catholic spouses who have been divorced cannot contract a valid marriage with persons who have been the cause of the divorce by proof produced at the time of the divorce owing to their conduct or by a criminal act (d). In Servia, also, adultery is an impediment. German Law. — By the German Civil Code a marriage between a spouse divorced on the ground of adultery and the person with whom that adultery has been committed, if in the decree of divorce the latter person is named as the cause of it, is void. A dispensa- tion may be obtained from this prohibition (c). Hungarian Law. — There is a similar provision (/). Spanish Law. — The Spanish Civil Code prohibits the inter- marriage of persons found guilty of adultery by judicial definitive (70 L. \o, tit. 2, p. 4. July 27tli, 1884. (/) See arts. 83 and 84, wHere the (r) C. C, s. 67. disqualifications for marriage are {d) C. C, s. 119. enumerated. (e) German C. C, ss. 312, 1322, (A-) C. C, s. 64. 1328. (a) Pothier, Traite du Mar., s. 234. (/ ) Marriage Law, art. 20. (I)) Art. 298, as defined by law of 122 CAPACITY FOR MARRIAGE — COJs^TINENTAL SYSTEMS. sentence {[/), and a marriage contracted between such persons is void (Ji) . Homicide of Spouse. — By the Italian Code a person who has been convicted of wilful homicide, committed or attempted against one spouse, cannot marry the other spouse (i). The Spanish Code also forbids the intermarriage of persons who have been condemned as authors or as co-authors and accompUces of the homicide of the conjoint of one of the intended spouses (j), and a breach of this rule is a ground of nullity (A). In Austria murder of a spouse is also an impediment (/). (d) Ravishment and Abduction. — In France a marriage contracted without free consent of one party can be impugned by that person only ; but where an abductor of a girl has married her, criminal proceedings can only be taken against him by persons who have the right to demand that the marriage be declared void, and he can only be condemned after the marriage has been declared null (w)- This impediment is also recognised as absolute in Austria. Servia, and Greece. (e) Fiduciary Relations. — Guardian and Ward. — The laws of Hungary and Spain contain a provision similar to that of the Roman law that a tutor or curator cannot marry his ward until his accounts are passed (»). The German Civil Code provides that a person who has a legitimate child, a minor, under tutelage, cannot marry her without a certificate from the Guardianship Court {vorminuhchafts fiericht), that he has complied with certain conditions as to the property of the infant (o). This is onh' an iwpediiurntiDn impedicns. (f) Spiritual or Official Position. — Holy Orders. — Under the Spanish law persons who have received holy orders, or having made profession in a religious order canonically approved, are bound {(]) Art. 84 (7). deemed to have been made with abso- {h) Art. 101 (1). lute separation of property ; no spouse (?) Art. 62. can take anj-thing from the other (./■> Art. 84 (8). by way of donation or testament ; (/.•) Art. 101 (1). and the guardian has uo right of (/) C. C, i^. OS. administration over the property of (m) C. C, art. 180; Code I'enal, the ward during the latter's minority : ai-t. 857. art. 50. Hungarian ^Earriago Law, (//) Spain, Civil Code, art. 45 (2). art. 19. A marriage contracted in breach of (o) S. 1;J14. this provision is valid ; but it is BRITISH DOMINIONS AND UNITED STATES. 123 by a solemn vow of chastity, cannot marry without having obtained the necessary canonical dispensations (p). In Austria this is also an impediment even if the persons have adopted another religion (q). The French Code Civil does not deal with this question expressly, and the jurisprudence has varied in regard to it. The Court of Cassation formerly decided that orders constituted an impediment (r), but more recently it has adopted the contrarj' doctrine (s). According to the Grerman Civil Code, soldiers and functionaries of a German State, who, under the laws of that State, require for the purpose of marrying a special authorisation, cannot marry without such authorisation ; and foreigners, who under the laws of such a State require a permit or certificate to enable them to marry, cannot marry without it (0- This, again, is onl}^ an impedimentum impediens. By Russian law, if the prospective husband is a military man or is an official of the Government, the permission of his superiors is also required, but tiie want of such permission does not render the marriage invalid, though it makes the minister liable to prosecution. SECTION III. Laws of British Dominions and United States. Requirements. — Age. — As already stated, the age fixed by the civil law, fourteen for a man and twelve for a woman, is adopted by the laws of England, Scotland and Ireland, and in the English-settled Colonies, with a few exceptions, e.g., in Ontario {u) and Queens- land (,r), the age is fourteen for both jjarties. United States. — The age for contracting marriage has been generally fixed by statute in the different States, superseding the rule adopted by the common law : for the man twenty-one years in Alaska, Delaware, Washington ; eighteen in Arizona, California, {p) C. C, art. 83 (4). See as to dis- (s) Houpin v. Steiiiu (1888), pensation, Anon., 1893, J. 624. As Dalloz, 1888, i., 97. to Italian law, see Cipriano r. Cipriano {t) S. 1315. (1878), Palermo, Sh-ey, 1881, iv., 8. («) E. S. 0. (1897), c. 1G2, s 16. (r/) C. C, s. 63. (x) Pari. Pap. No. 5 (1894), 144, (?•) Aupy r. Lemotagner (1878), 145; (1903), Cd. 1785, p. 14. Dalloz, 187S, i., 113. 124 CAPACITY FOR MARRIAGE BRITISH DOMINIONS, ETC. Idaho, Indiana, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New York, Ohio, Oklahoma, Oregon, South Dakota, West Virginia, Wisconsin, Wyoming ; seventeen in Alabama, Arkansas, Georgia, Illinois, Indian Territory ; sixteen in the District of Columbia^ Iowa, North Carolina, North Dakota, Texas ; fourteen in Tennessee, Virginia, New Hampshire, Kentucky, Louisiana. For the woman, eighteen in Alaska, Delaware, Idaho, New York, Washington ; sixteen in Wyoming, West Virginia, Nevada, Nebraska, Montana, Michigan, Indiana, Arizona ; fifteen in ■California, Minnesota, New Mexico, Oklahoma, Oregon, South Dakota, Wisconsin ; fourteen in Alabama, Arkansas, District of Columbia, Georgia, Illinois, Indian Territory, Iowa, North Carolina, Texas, Utah ; thirteen in New Hampshire, North Dakota ; twelve in Virginia, Tennessee, Louisiana, Kentucky. There is no statutory provision in Colorado, Connecticut, Florida, Kansas, Maine, Maryland, Mississippi, Missouri, New Jersey, Pennsylvania, PJiode Island, South Carolina, Vermont (a). Non-age {b) renders a marriage void in Alabama, Arkansas, Arizona, Georgia, Kentucky, New Mexico (c). North Carolina (d), Massachusetts, Michigan, Minnesota, Texas, and Virginia; but, for the most part, only where the parties separate during non-age and do not cohabit afterwards. In California, Idaho, Indiana, Iowa, Kansas, Kentucky, Michigan, New York (e), Utah, and many other States, non-age renders a marriage voidable only ; and in most cases such marriages cannot ))e avoided if the parties have voluntarily cohabited after attaining a marriageable age (/). Consent. — English Law.— The English law adopts the principles of the civil law already stated (^), that the free consent of the parties is necessary, and thus force, fraud or fear, or lunacy will avoid the marriage. According to English law, concealment by a woman from her husband at the time of her marriage that she is («) Pari. Paper, Misc., No. 2(1894); the death of either i^artj-. No. 2 (1903), Cd. 146S. («-) r)ut oulj- wheu the marriage {b) Bishop, Marriage and Divorce, was contracted without tho consent of ss. 561 el seq. parents. (r) But only from the time of the (/) Stimsou, American Statute Law, decree of nullity. s. G113. (/) 59 Vict., No. 23(1895), ss. 27, 28, 41 — 44 (forfeiture of property acquired on marriage of minors without con- sent), 49, 50. (z) No. 19 of 1904, ss. 19, 20, 24, 57. In case there is no person in the Colony capable of giving consent, a certificate cannot issue until fourteen days after receipt of notice (s. 27). (a) Canon Law and Stat, of Novem- ber 1st, 1841, arts. 31 — 33 (minors under twenty). (&) Canon Law and Order in Council of October 3rd, 1840, art. 21 (minors under twenty) ; and the person giving consent (father, mother, or guardian) must appear before the registrar. ((■) Ordinances 1 of 1861, s. 4, 7 of 1902, and as to marriages between British subjects and foreigners, 8 of 1907. {d) Law 2 of 1889, s. 8. (e) No. 19 of 1907, s. 23. (/) Ordinance 3 of 1898, s. 7. (g) Negri Sembilan, No. 4 of 1902, ss. 8, 9 ; Pahang, No. 7 of 1902, ss. 8, 9 ; Perak, No. 3 of 1902, ss. 8, 9 ; Selaugor, No. 7 of 1902, ss. 8, 9. (A) Ordinances 10 of 1891, 2 of 1892, and 1 of 1904 (Labuan) ; Proclamation 7 of 1891 (North Borneo). (i) Ordinance 7 of 1875, s. 13. (;■) No. 9 of 1862, ss. 6, 10. [k) No. 22 of 1906, 8. 6 (2). But the minister is not responsible unless the parents or guardian notify him that they forbid the marriage : s. 14. 9—2 132 CAPACITY FOR MARRIAGE^BRITISH DOMINIONS, ETC. Leone Protectorate (/i)) Gold Coast Colony (/), Northern Nigeria (;?i), Southern Nigeria (??)> St. Helena (o), African Protectorates (/>), Bermuda (q), Jamaica (r), Antigua (s) , St. Kitts-Nevis (0 (if there is no person having authority to give consent, the marriage may tate place upon oath made to that effect by the j)arty requiring a marriage licence (0), Montserrat (»), Virgin Islands (.r), Grenada (;/), Trinidad and Tobago (^~), British Honduras (a), Falkland Islands (/>), Fiji (c), and the Western Pacific Islands ((/). In Barbados, consent does not appear to be necessary in the case of minors married by banns, but by s. 4 of No. 15 of 1891 any person " whose consent is required by law " may forbid the marriage and so render publication of banns void. In the case of civil marriage, the restrictions on the issue of licences enforce consent, while notice can only be given by minors with consent (c). Provision is made for consent being If parents or guardians are uon compos mentis, or absent, or unreasonable in withholding consent, a Judge of the Supreme Court or District Commis- sioner may declare the marriage proper : s. 7. (/c) See note (/i) on previous page. {I) No. 14 of 1884, s. 11 (b). (m) No. 1 of 1907, s. 9 (b). [n) No. 14 of 1884, s. 20. (o) Ordinances 3 of 1851 and 4 of 1886. (p) British Central Africa, Ordi- nance 3 of 1902, ss. 18—20 ; North- Eastern Ehodesia, North-Eastern llhodesia Marriage EeguUitions, No. 2 of 1903, ss. 18—20 ; Uganda, Uganda Marriage Ordinance, 1902, ss. 18 — 20 ; East Africa, Ordinance 30 of 1902, ss. 18—20; Somaliland, Regulation 3 of 1902, ss. 18—20. ((/) Act 19 of 1847, s. 1 , for marriage - by licence ; but, in the case of banns, the banns can only be voided by some authorised person forbidding the marriage : Act 20 of 1847, s. 4. (r) No. 25 of 1897, s. 26. Non- observance of this rule does not avoid the marriage : s. 7. Where one party is under twenty-one, the Supremo Court may declare a forfeiture in favour of such party and of the issue of the marriage of all interest in any l^roperty acquired by the other jiarty by virtue of the marriage : s. 26. There are similar provisions in the law of the Bahama Islands : No. 4 of 1908, ss. 0, 20. (s) Act 89 of 1844. {t) Act 63 of 1845, ss. 8, 10, 11 ; Act 57 of 1843 (Dissenters). (u) Act 146 of 1839, ss. 3, 6. {x) In case of a marriage bj' licence ; while in case of marriage bj' banns, the publication is voided by their being forbidden by ' ' any person whose consent is required by law " : Marriage Act of 1839, s. 3 ; and see Ordinance 4 of 1907. So in St. Vincent : Act 40 of 1841, s. 3. {y) No. 12 of 1900, s. 18. (z) Eev. Ord. 59, s. 15. (a) No. 18 of 1889, s. 12. [h) No. 8 of 1902, s. 10. (c) No. 4 of 1892, s. 17. {(i) Order in Council of 1893, ss. 121, 124; Stat. R. & 0., Eev., ii., Foreign Jurisdiction, p. 523. See also Pacific Islands Civil Marriages Order in Council, 1907, ss. 17 tt scq. ; Stat. E. & 0., 1907, p. 200. (e) No. 1 of 1905, s. 3. PROHIBITIONS — PRIOR MARRIAGE. 133 judicially supplied by the Chief Justice in case of the insanity, absence from the Colony, and incapability of, or of the unreasonable or improper withholding of consent by, a parent or guardian whose consent to a marriage is necessary or of there being no person capable of consent (,/ ). Similar provision for the judicial authorisa- tion of marriage, in case of incapacity or of consent being un- reasonably withheld, is made by most of the other laws above cited. Law of the United States.— By the common law' of the United States the marriage of minors without parental consent is good (g). The legal i)osition as regards such marriages is regulated, for the most part, by State legislation. Statutes requiring parental consent, yet not expressly declaring a marriage celebrated without it to be void, are construed as directory only (//). The consent of parents or guardians to the marriage of minors is generally required (i). In some States (New York) it is required only in case the minor is under the age of legal consent (/i). There does not, however, appear to be any provision on the point in New Hampshire, Oklahoma, South Carolina, or Tennessee. In Louisiana, marriage without parental consent is a good ground for disinherison. In Kansas, a law of 1906 forbids the issue of a licence for the marriage of a male under twenty-one, or of a female under eighteen, except with the consent of the parent or guardian ; and if the male is under seventeen, or the female is under fifteen, the consent of the Probate Judge must also be obtained. Prohibitions. — Prior Marriage. — Law of England. — By the law of England, the offence of bigamy consists in the felonious contract- ing of a second marriage during the subsistence of a prior one (l), and the offence is committed whether the second marriage shall have taken place in England, Ireland, or elsewhere (m). The (/) No. 15 of 1891, s. (3. identical, as to bigamy, with that of {g) Bishop, Law of Marr. eV: Div., i., England. See Encyclo. Scots Law, tit. s. 555. Bigamy, ii.., p. 64. (/i) Hid., s. 554. Cf. Sturgis v. (m) See as to the construction of this Sturgis (1908), 93 P. 696. provision, Trial of Earl Paissell before (i) Pari. Pap., Misc., No. 2 (1894); the King in Parliament, [1901] A. C. No. 2 (1903). 446. Colonial tribunals have no juris- (A;) N.Y. Consol. Laws (1909), c. 14, diction over bigamy under Colonial s. 25. Acts, except where the second marriage {I) See Offences against the Person was celebrated within the Colony : Act, 1861 (24 & 25 Yict. c. 100), s. 57. Macleod v. Att.-Gen. for New South The law of Scotland is practically Wales, [1891] A. C. 455; but such 134 CAPACITY FOR MARRIAGE — BRITISH DOMINIONS, ETC. punishment of bigamy is penal servitude not exceeding seven years, or imprisonment, with or without hard labour, for not more than two years. A statutory defence to a charge of bigamy is given to " a person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past (at the date of the second marriage), and shall not have been known by such person to have been living "(u) at any period during the seven years (o). Honest belief, based on reasonable grounds, in the death of the other spouse within the seven years is a good defence (p). Scots Law. — It seems that in Scots law, although bona fides will not validate a marriage entered into during the subsistence of a prior marriage, bona fides on the part of either parent will be effectual to legitimate the children {q). The error must be a Justus error ()•), and an error of fact, not of law (s). The same rule formerly held good in England, but 1:10 longer does so (0- Law of the United States. — Tbe law throughout the States and Territories and the District of Columbia is generally uniform in prohibiting bigamous marriages, in treating them as criminal, and in declaring them void (m). In some localities such marriages are void ah initio, and the children are illegitimate (a). In others they are also void, but the children are legitimate if (1) both or (2) one of the parents were ignorant that the former marriage existed. In other States the marriage stands until judicially annulled. In Tennessee it is declared that if a person has been absent two years and reported dead and the spouse has married again, the latter on reappearance of the former husband or wife may choose which marriage he or she elects to abide b}^ (/>). In cases can be })uiiis}ie{l under 8. 67 of (s) Purves' Trustees, uhi supra, at 24 & 25 Vict. c. 100, which permits of p. 536. the trial of the offender in any county {t) Pollock & Maitland, Hist. Eng. of England or Ireland in which he is Tjaw, ii., 374. See, however, Whit- arrested or is in custody. worth v. Whitworth, [1893] P. 85, as (m) Reg. r. Jones (1842) C. & M. (514. to hona fides in connection with the (0) S. 57 of 24 & 25 Vict. c. 100. discretionary power of the Court as to (p) Reg. V. Tolson (1889), 23 divorce. Q. B. D. 168. (h) Pari. Rep. of 1903; Bishop, Law (7) See Craig, ii., 18, 19; Bankton, of Marr. and Div., i., ss. 712 et seq. i., 5, 51 ; Purves' Trustees v. Purves (a) So, in Wisconsin, Rev. St., 1898, (1895), 22 Rettio, 513; and cf. Lapsley s. 2349; In re Geith's Estate (1906), V. Grierson (1848), 1 II. L. C. 498. 109 N. W. 552 ; 129 Wise. 498. (r) Craig, uhi supra. (h) Pari. Rep. of 1894, p. 158. IMPOTENCE — RULE OF TRIENNIAL COHABITATION. 135 New York and Arkansas, if a husband abandons liis wife, or a wife her husband, and resides out of the State for live years, without being known to the other party to be hving during that time, his or lier death is presumed, and a subsequent marriage entered into by such wife or husband is vahd, though voidable (c). Ten years' absence, without news of the absentee, creates a similar right in Louisiana. If either spouse has been continuously absent for thirteen years in Missouri, five years in Alabama, and seven years in Maryland, the other, not knowing such party to be living, may marry without being subject to indictment for bigamy ; and in Maryland the spouse abandoning the other forfeits all claim to the real or personal estate of the other ; and if he be the husband the wife has her dower and intestate share in personalty as if he were dead. Impotence. — English Law. — A party contracting a marriage with knowledge of his impotence cannot annul his contract (d). The suit must be brought in the lifetime of both parties, and the validity of a marriage cannot be impeached, on the ground of impotence, after the death of one of them (e). Nor can third parties institute such a suit, although both parties are alive. Rule of Triennial Cohabitation (/). — The canon law rule of triennial cohabitation has not been recognised in England beyond this point, that where a husband or a wife seeks a decree of nullity propter impotentiam, if there is no more evidence than that they have for a period of three years lived together in the same house and with ordinary opportunities of intercourse, and it is clearly proved that there has been no consummation, then if that is the whole state of the evidence, inability on the part of one or the other will be presumed. On the other hand, the presumption to be drawn from the fact of non-consummation after three years' cohabitation is capable of being rebutted. And also, ever}^ case need not be fortified with the presumption ; for, although no presumption can be raised from the absence of consummation within a less period than three years, yet positive evidence may be given from which the same inference of inability may be drawn (g). (c) N. Y. Cons. Laws (1909), c. 14, {e) A. r. U. (1868), L. E. 1 P. & D. 8. 7. 5o9. (rf) Norton r. Seton (1819), 3 (/) See p. 20. PhiUim. 147. {g) G. v. M. (1885), 10 A. C. 171. 136 CAPACITY FOR MARRIAGE BRITISH DOMINIONS, ETC. Scots Law. — This rule would probably be followed in Scotland (/O- The complaining spouse may be estopped by his or her conduct from obtaining a decree (?) ; and it seems that in Scotland the age of the spouses might constitute a bar {k). Law of the United States. — Marriages are void on the ground of impotence in Georgia, Kentucky, North Carolina, New Jersey, and in Virginia, but only from the time when a decree is pro- nounced to that effect. On the other hand, impotence merely makes a marriage voidable in many States, e.g., in Arkansas, California, Dakota, Idaho, Michigan, New York, Vermont, and Virginia (/). Prohibited Degrees. — British Dominions. — English Law. — According to the law of England, lineal consanguinity (a), however remote, is a bar to marriage. Collateral consanguinity is a bar only to the third degree, reckoning in the way adopted by the civil law (/>). Thus, first cousins, who are in the fourth degree, may intermarry. Direct affinity, or the relationship subsisting between the husband and the wife's blood relations, or between the wife and the husband's blood relations, is also a bar to marriage wherever such relationship, if it were consanguine, would constitute such a bar. All marriages within the prohibited degrees of consanguinity or affinity, as they are set out in the " Table of Kindred and Affinity," prepared by Archbishop Parker in 1563, and generally printed with the Book of Common Prayer (c), are now absolutely null and void by the Marriage Act, 1835 (cO; e.g., the marriage of a man with a sister (/i) Per Lord Watson, in G. v. M., ad he. cit., ss. 758 et seq. uhi supra, at p. 198 : followed as to (a) Gibson, Codex, 412 ; Black- impotence quoad hanc and practical stone, Comm., ii., s. 206; Eisk., i., 6, 8. impossibility of consummation in S. v. [h) See Lock v. Lake (1757), 2 Lee, B. (1892;, 1. L. Pv. 10 Bom. G39. 420. (t) As to this "doctrine of rtincerity," (c) This Table has received synodal as it has been called, though it is in authority from canon 99 of 1603, fact merely a form of estoppel, or, in which orders it to be publicly set up Scots law, of "approbate and repro- in churches, and it has always been bate," see G.t'.M., «6i's»y'?'art of the statute law of England: (/c) Stair, i., 4, 6, 4 ; Ersk., i., 6, 7 ; see Hill v. Good (167;J), Vaugh. 302 ; Eraser, Husband and Wife, i., 93. Rog. v. Chadwick (1847), 11 Q. B. 205 ; {I) Stimson, ss. 6112—3. As to Sherwood v. Ray (1837), 1 Moo. P. C. what constitutes impotence, the law 353. of the United States is, gein'rally, ((/) b & ij Will. IV. c. 54. In spite similar to thut of England : Bishop, of this statute, however, a decree of MARRIAGE WITH DECEASED WIFE's SISTER. 1 37 oi his deceased wife (<) (until the recent Act) or with the daughter of the sister of a deceased wife (f) ; half blood relationships, equally with those of the whole blood, constitute consanguinity, and a marriage of persons within the prohibited degrees is void under the Act of 1835, although one of the parties is illegitimate (/). Marriage with Deceased Wife's Sister. — Marriage with a deceased wife's sister has now been legalised in the United Kingdom as a civil contract, and previously in many of the Colonies ((7) enactments abolishing this impediment to marriage have passed into law. The Imperial Act provides that a marriage contracted between a man and his deceased wife's sister within the realm or without is not to be deemed void or voidable as a civil contract by reason only of such affinit}', with provisoes : (1) That no clergyman in holy orders of the Church of England is to be liable to any suit, penalty or censure, civil or ecclesiastical, for anything done or omitted to be done by him in the performance of the duties of his office to which he would not have been liable before this Act ; (2) that if any minister of any church or chapel of that Church refuse to perform such marriage service between persons who, but for such refusal, would be entitled to have the service performed in such church or chapel, such minister may permit another clergyman of the Church of England entitled to officiate in the diocese where such church or chapel is situate to perform such marriage service nullity will be granted on the applica- 1«92; Natal, No. 15 of 1897, which tion of one of the parties, even where, is retrospective in operation and ap- at the time of the celebration of the plies to " any marriage heretofore marriage, both were cognisant of the or hereafter contracted within this impediment: Andrews f^. Eoss (1888), Colony or without " : but no minister 14 P. D. 15. of religion is to be liable to any pains (e) Brook v. Brook (1861), 9 H. L. C. or penalties for refusing to solemnise 193 ; 5 Eul. Cas. 783. any marriage made valid by the Act. (/) Eeg. V. Brighton (1861), 1 B. & S. This Act was amended by No. 45 of 447 ; 12 Eul. Cas. 738. Affinity 1898, which added a saving clause as cannot be created by illegitimate inter- to property already inherited, and as course under the present law of to any lis pendens : New Zealand, England, though it was for a time No. 72 of 1900, legalising the marriage under stat. 28 Hen. VIII. c. 7 : Wing of a woman with her deceased V. Taylor (1861), 30 L. J. P. & M. 258. husband's brother ; Jersey, Act of For the purposes of criminal punish- 1896; New South Wales, 1899, No. 15, ment of incest it is not necessarj^ that s. 18; Tasmania, 37 Vict., No. 7; the relationship be traced through law- Western Australia, Marriage Act, f ul wedlock : 8 Edw. VII. c. 45, s. 3. 1894. {(j) E.). Law of Canada. — The better opinion would appear to be that, apart from local legislation, a marriage within the prohibited Levitical degrees of consanguinity is illegal in the Provinces of Canada which have adopted English law (c). It has been held in Ontario, however, with respect to a marriage prior to 1882, that by English law, as adopted in that Province, a marriage with a deceased wife's sister was not ij^so facto void, but was to be esteemed valid for all civil purposes unless annulled during the lifetime of the parties {d). By federal legislation of the Dominion Parliament of that year, " all laws prohibiting marriage between a man and the sister of his deceased wife are hereby repealed, both as to past and future marriages, and as regards past marriages as if such laws had never existed " (e). Vested rights acquired by the issue of the first marriage are protected by a saving clause, which also j)rovides that the Act is not to affect any such marriage when either of the parties has afterwards, during the life of the other, lawfully intermarried with any other person. A statute of 1890 provides in similar terms for the marriage of a man to the daughter of his deceased wife's sister when no law relating to consanguinity is violated (/) ; and this is accordingly the law as to such marriages throughout the whole Dominion of Canada (g). Law of the United States. — In the United States generally " the written law of void or voidable within the prohibited degrees is . . . what the English unwritten law, modified by the written (//), was before the enactment of 5 & 6 Will. IV. c. 54"(i). Unless a statute defining the forbidden degrees declares the marriages it prohibits void, such marriages are only voidable (0- {b) 2 Edw. VII. c. 23. 0. L. E. GO. {<■) Hodgins v. McNeill (1862), 9 Gr. (e) 45 Vict. c. 42, Can. 305; article in 38 Can. Law Jour., p. 99; (/) 53 Vict. c. 36, Can. 2 Edw. VII. (Ont.), c. 23; but see {;/) E. S. Can. (1906), Cd. 105, s. 1. Armour's Eeal Propei'ty, p. 115, and {h) 32 Hen. VII. c. 38. article in 1 Can. Law Times, pp. 509, (t) Bishop, Law of Marriage and 569, 617, 664. Divorce, i., s. 289 ; Stimson, American (rZ) Hodgins V. McNeill (1862), 9 Statute Law, s. 6111 ; Pari. Eep. 1903, Gr. 305 ; In re Murray Canal (1884), 6 Cd. 1468. 0. E. 685 ; Kidd v. Harris (1901), 3 140 CAPACITY FOR MARRIAGE BRITISH DOMINIONS, ETC. Consanguinity. — In most States of the Union marriage is pro- hibited between parent and child, grandparent and grandchild, brother and sister of the half as well as the whole blood, uncle and niece, aunt and nephew of the half as well as the whole blood ; and this prohibition extends to illegitimate as w-ell as legitimate kindred. Marriages within the above limits are in many States declared abso- lutely void. Both the propositions just stated appl}^ in Alabama, Arizona, Arkansas, California, Colorado, Idaho, Illinois, Indian Territory, Kansas, Louisiana (/i), Montana, Nebraska, NewMexico(/), North Dakota, South Dakota, Utah, and Wyoming. In New Jersey marriage within the prohibited degrees is not declared void, but incestuous, and punishable as such. In North Carolina marriage within the prohibited degrees is void, but is not to be so declared after the birth of issue and the death of either party. In Virginia such marriages are void from the time of a decree of nullity or of a conviction under the criminal statutes which punish the con- tracting of them. Marriage between first cousins is prohibited and void in Arizona (m) (»), Arkansas (o), Illinois (ji), Indian Terri- tory (??), Louisiana (?0, Missouri, Nebraska (j)). North Dakota (7i), Oklahoma, Pennsylvania, South Dakota (w); and Wyoming (n). In Minnesota, North Carolina, Oregon, and Wisconsin marriages are l^rohibited and void betw^een persons nearer of kin than first cousins of the whole or half-blood computed by the rules of the civil law. In Colorado the provisions of the Civil Code relating to marriage do not extend the prohibited degrees of consanguinity to cousins, while the Criminal Code includes that relationship within the prohibition, and declares marriage betw^een first cousins void. Affinity. — There are no provisions as regards affinity in Alaska, (Ic) lu Louisiana, bj^ a law of 1901, prohibition continues even if the c. 180, a marriage thereafter con- marriage on which the affinity is tracted out (jf the State will not be founded has been dissolved by death valid in the State if the parties return or divorce, unless it was originally to permanently reside there. void. So also in Massachusetts, (/) But a judicial decree is necessary Vermont, and Virginia. In Virginia, a to annul the marriage. law of 19()-1 prohibits the marriage of (m) And also incestuous. a woman with the husband of her (*/) The prohibition extends to brother's or sister's daughter, illegitimate as well as legitimate {]>) Law of 1905, c. 94. The pro- relatives, hibition extends only to first cousins (o) Marriages within the prohibited of the whole blood, degrees are absolutely void, and the AFFINITY. 141 Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Indian Territory, Kansas, Louisiana, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Caro- lina, North Dakota, Ohio, Oregon, Texas, and Wisconsin. In Alabama marriage is prohibited between step-parents and grand- parents, and step-children and grandchildren, father-in-law and daughter-in-law, mother-in-law and son-in-law, nephew and uncle's widow, niece and aunt's widower. Such marriages are incestuous, and by s. 4889 of the Penal Code are declared absolutely void. By s. 4890 of the Penal Code it is provided that upon conviction of incest for marrying within the prohibited degrees the Court must declare the marriage null and void. Under the Civil Code, however, the issue of an incestuous marriage before annulment is legitimate. There are similar prohibitions in the Districts of Columbia, Georgia, Iowa, Kentucky {q), Maine, Maryland, Massa- chusetts (g), Michigan, Mississippi, New Hampshire, New Jersey {>■), Pennsylvania, Pihode Island, South Carolina, Vermont (q), Vir- ginia (■) ]\[ulchaiul Kuber r. Bhudhia (s) Indian Act V. (»f 1872, s. 60. (1897), I. L. R. 22 IJoin. 812. (a) NanabhaiGanpatravDhairyavan (/) See Venkatacharyulu r. Eanga- ». Janardhan Vasudev (1886), I. L. E. charyulu (1890), I. I;. R. 14 Mad., at 12 Bom., at p. 118. p. 320. (/») Ex jmrto Jaukypersand Agar- (y) Baillie's Digest, i., 45. MUHAMMAD AN LAW. 145 relations in the order in which they would be entitled to inherit the estate of the minor. In the latter case only the marriage can be repudiated by the minor on attaining puberty (//). Polygamy is allowed within the limit of four wives, but among Shiahs it is practically unrestricted, as according to their doctrine a man may enter into a temporary marriage for any period, however short, with any number of women (?'). A Muhammadan may marry a woman of any race, but a marriage by him with a woman who does not believe in a revealed religion is voidable [k). A marriage of a Muhammadan female with any one but a Muhammadan is also voidable (/). The Courts will not recognise a marriage in India between a Muhammadan and a Christian unless it be solemnised in accordance with the Christian Marriage Act, 1872, i.e., by a minister of religion, a marriage registrar, or a person licensed to grant certificates of marriage between native Christians (m). The following blood relations are prohibited to a Muhammadan in marriage : (1) His mother or other ascendant ; (2) his daughter or other descendant ; (3) his sister or step-sister ; (4) his niece or other descendant of his brother or sister ; and (5) the sister of any ascendant. He is also prohibited from marrying the following relations by affinity, viz., his wife's mother, grandmother, daughter, or granddaughter, and the wife of his father's paternal grandfather, son or grandson, or a woman with whom one of those relations has had an opportunity of having intercourse (?i). A marriage between a foster brother or sister is voidable if there was an interval of not more than two years, or according to some authorities two and a half years, between the birth of the one and the suckling of the other (o). The last rule as to intermarriage is stated by Sir Eoland Wilson (j)) in the following words : " A man is also forbidden to have two wives at the same time, so related to each other by consanguinity, affinity, or fosterage that if either of them had been a male they would have been prohibited from intermarrying, but there is no objection to marrying two such women successively, so that, for instance, a man (/i) Baillie's Digest, i., 45, 46. (?») Indian Act XV. of 1872, ss. 4, 5. (i) Ibid., ii., 39. (n) Wilson's Digest, ss. 35, 36. {k) Wilson's Digest, ss. 39, 39 (a), (o) Ih'd., s. 37. (0 Ibid. {p) Ibid., s. 38. M.L. 10 146 CAPACITY FOR MARRIAGE — BRITISH DOMINIONS, ETC. may marry his deceased, or divorced, wife's sisters " {q). A widow, or divorced woman, can re-marry, but she is bound to observe an interval of from three months to four months and ten days or till delivery in case of pregnancy, between the termination of one marriage by divorce or death and the contracting of the other. This interval is termed Iddat(r). Under Muhammadan law a wife may obtain a judicial divorce on the ground of her husband's impotence anterior to marriage if she was unaware of the fact (s). The divorce is suspended for a year after decree in order to ascertain whether the defect is removable (s). Christian Marriages. — There are Acts of the Indian Legislature relating to the marriage of other members of the community. Indian Act XV. of 1872 provides for the marriage of persons professing the Christian religion by ministers of religion or by marriage registrars. The consent of the father or guardian or mother is necessary to the marriage of a minor, and a marriage cannot take place between native Christians unless the man is over sixteen and the woman over thirteen years of age. Parsee Marriages. — Indian Act XV. of 1865 provides for the marriage and divorce of Parsees. A list of the degrees of con- sanguinity and affinity prohibited among Parsees is to be found in the Gazette of India, September 9th, 1865, pp. 981, 982. The marriage must be solemnised according to the Parsee form or ceremony called " Asirvad," by a Parsee priest, in the presence of two Parsee witnesses, and the consent of the father or guardian must be given to the marriage of a Parsee who has not completed twenty-one years of age. {q) A marriage with a living wife's (1895), I. L. E. 23 Calc. 130. sister was held to be void iu Aizuunissa (?•) Wilson's Digest, s. 31. Khatoon v. Karimuunissa Khatuon (s) Ibid., s. 73. CHAPTEE III. THE MARRIAGE CEREMONY. Solemnities Essential to the Validity of Marriage. — Marriage con- tracts may relate to : (a) Betrothals, which were formerly distin- guished as de futuro or de pr(eseiiti ; (b) marriages (a). The former are now generally religious only, and the law only regulates the latter class, except so far as the former fall under the head of Promise of Marriage (/>). Three main classes of marriage ceremonies are required : First, the purely civil, such as those celebrated in Argentina, Belgium, France, Germany, Holland, Italy, Mexico, Roumania, and Switzer- land; second, the purely religious, such as those celebrated in Austria (except for persons not belonging to any religious denomination), and in countries acknowledging the spiritual jurisdiction of one or other of the branches of the Eastern Church, such as Russia, Greece, and Servia ; third, the mixed, civil, and religious, such as those in Great Britain. To make a marriage contract valid as a civil contract it must be celebrated in the manner and with the formalities which the law requires. Civil Law. — It has been seen that no particular ceremony was necessary to constitute the status under the civil law. Canon Law. — The solemnities required by the canon law to con- stitute the contract of marriage have been already mentioned. While the ancient canon law of Europe reverenced marriage as a sacra- ment, yet it still so far respected its natural and civil origin as to consider that where the natural and civil contract was formed, it had the full essence of matrimony without the intervention of a priest. But by the decree adopted at the twenty-fourth session of the Council of Trent, the intervention of a priest was required by the Church of Eome as positively essential to the validity of marriage. (a) See pp. 14, 15, 17, 16, 44. {]>) See pp. 69, 156 et seq., 174 et seq. 10—2 148 THE MARRIAGE CEREMONY ROMAN-DUTCH LAW. This decree, like others of this Council, was not admitted as of authority either in England or in some other States of Europe ; but the ancient canon law continued to form the basis of their matrimonial law(c). SECTION I. Roman-Dutch Law. Betrothals {d) or Sponsalia de Futuro. — In the Eoman-Dutch law betrothals were recognised as promises of marriage binding upon the persons making them. Once the betrothal had become a binding contract (i-inculum juris) between the bridegroom and the bride (c), the parties to that contract were mutually bound to fulfil their obligations, in the same way as formerly the mundoaldus and the bridegroom had been mutually bound, each to carry out his part of their contract. In the same way as the bridegroom had been entitled to compel the mundoaldus to hand over his ward, so the parties to the later con- tract were mutually entitled — since it had become a rule that the marriage ceremony should be performed before the magistrate or the priest — to compel each other to go through it and complete the marriage contract (/). The bride was obliged to remain faithful to her bridegroom. If she were unfaithful, she and her accomplice might even be con- demned to death, or the death sentence might be commuted into the payment of a u-eergeld to the bridegroom. In order to make a betrothal binding it was not necessary in the time of the Eepublic that in entering into the contract a particular form should be observed. The solemnities of former times had become obsolete, and spojisalia might be entered into in any way in which an ordinary contract might be legally concluded, either ver- bally or in writing, or even by message through a third party (g). (c) Dalrymple i'. Uah-ymple (IMll), (e) For the history, cf. Chap. I., 2 Hagg. C. R. 54, per Lord Stowell, at s. 2. p. 64 ; 17 Rul. Gas. 10. (/) Fock. Andr., Het Oud Ned. {d) Cf. J. Cos, Verhandeling over B. E., ii., p. 145. hot huwelyk, pars. 1 — 122; 11. (). The dispute was heard by the Judge or the States (q). The right to intervene was granted to those whose interests were directly affected by the marriacre or who had to guard the interests of the contracting parties. Dispensation from the provisions regarding the publication of the banns could be granted by the States, who had the power, which tiiey did not seldom exercise — to delegate their authority or part thereof to other (civic) authorities (r). All marriages solemnised without the due publication of the banns were void and the children born from such marriages were illegitimate (s). The celebration of the marriage had to take place, in the Provinces of Holland, during the time of the Eepublic, either in church before the minister of religion or before the civic authorities (0- In 1795, the solemnisation of the marriage by the civil marriage officer became essential and obligatory (a). In case the solemn celebration of the marriage (verba de prcesenti) (7i) Polit. Ordon. (Ilollaiid), April (r) Fock. Andr., Bijdrageu, i., 131— 1st, I08O, art. 3; Polit. Ordon. (Zee- 132. land), February 8th, 1583, arts. 6, 21, (s) Polit. Ordon. (Holland), April let, with the above-mentioned restriction 1580, arts. 3, 16 ; Grotius, lutrod., i., 5, as to Church authorities; Grotius, 16; in the Polit. Ordon. of Zeeland Introd., i., 5, 16. (February 8th, 1583), the nullity is (o) Fock. Andr., liijdragen, i., 182 — not specially mentioned anywhere, but 184. seems to be intended. (p) Polit. Ordon. (Holland), April (<) Polit. Ordon. (Holland). April 1st, 1st, 1580, art. 3 jo., 12; Polit. Ordon. 1580, art. 3; Plakaat, July 6th, 1580, (Zeoland), February 8th, 1583, art. 6, Gr. PI., viii., 529; Arntzenius, Inst. 21 ; Fock. Andr., Bijdragen, i., 184. Jur. Belg. Civ. d., i., pars. 64 et seq. ; (7) Grotius, Introd., i., 5, 16; Fock. Fock. Andr., Bijdragen, i., 130. Andr., lor. n't. 184; Arntzenius, Inst. (a) Plakaat, May 7th, 1795; Y. d. J. ('. Bf^l^'.. ii., 3, 01. Keessel, Thes. Sel., Thes. 84; V. d. MARRIAGE CEREMONY SOUTH AFRICA. 155 were not duly observed, the marriage was considered to be null and void in the Province of Holland (h). According to the laws of the Province of Zeeland the contracting parties were considered liable to punishment, but the marriage was nevertheless considered a valid one (c). South Africa. — Cape Colony. — In Cape Colony this matter is regulated by Order in Council of September 7th, 1838 (d) ; Order in Council of April 3rd, 1840; Act 4 of 1848 ; Act 12 of 1856 ; Act 16 of -1860 ; Act 21 of 1878 ; Act 9 of 1882 ; Act 40 of 1892 ; Act 28 of 1897; Act 27 of 1902; Act 11 of 1906. The publication of the banns is essential to the validity of a marriage unless the parties have obtained licence to be married without them. The publication takes place either : (a) in the parish church of either of the contracting parties by the minister on three consecutive Sundays during divine service, or (b) by the resident magistrate, in case no religious ceremony is contemplated, of the district where either of the contracting parties is residing, to be published in some conspicuous place near the Court House and to be read by the resident magistrate on three consecutive Court days, or (c) by a marriage officer to be appointed by the Governor. Whenever a marriage officer other than the resident magistrate is appointed, the mode of the publication of the banns is laid down by the Governor at the same time {e). Notice of the contemplated marriage must be given to the parish minister or the resident magistrate or marriage officer. Objections must be lodged with either of these authorities. From their decisions an appeal lies to the Supreme Court. Unless the marriage is celebrated within three months after the publication of the banns, the publication becomes void. The celebration or solemnisation of the marriage has to take place in either of the churches where the banns have been published, or in the Court House or office of the magistrate. Each of these authorities has to keep a register (/). Linden, Koopmansh., i., 3, 6, on {d) Cf. the Ordinances and Acts p. 26. mentioned on p. 91, and Maasdorp, {b) Tolit. Ordon. (Holland), April Inst, of Cape Law, pp. 25, 26, 27. 1st, 1580, art. 13. (e) Ibid. (c) Polit. Ordon. (Zeeland), February (/) Maasdorp, Inst, of Cape Law, 8th, 1583, art. 6 in tine jo. art. 22. i., ch. 5, and authorities quoted. 156 THE MARRIAGE CEREMONY CONTINENTAL SYSTEMS. In the case of a widower or widow no banns are allowed to be published, nor a marriage to be celebrated, unless it is proved to the minister, magistrate, or marriage officer that the inheritance of the minor children of the former marriage has been duly secured by deed of kinderheirys (g). The publication of the banns may be avoided by obtaining a special marriage licence, to be granted by the resident magistrate on the fulfilment of certain statutory requirements for suspending the publication of the banns or of the marriage notices. The marriage has to take place within three months after the date of the licence, and can be celebrated in any church or before any resident magistrate in the Colony (/<). Natal. — The governing statutes are considered below (/t/0- Transvaal. — The governing statutes are stated below (Idi). Orange Free State. — The marriage formalities are regulated by Act 26 of 1899. In Ceylon, Ordinance No. 19 of 1907 ; and in British Guiana, Ordinance No. 25 of 1901 and No. 29 of 1902, are the ruling statutes, and are considered below (i). SECTION II. Laws of France, Belgium, Germany, Austria, Hungary, Italy, Spain, and Switzerland. Promise of Marriage. — In the modern Continental Codes a promise of marriage is no longer an obligation enforceable in specie, but its breach founds a claim for damages. The provisions of the chief Continental Codes on this subject may be shortly stated. Law of France. — In France (and Belgium) a promise of marriage creates no legal obligation to contract the marriage ( j), and a penal clause designed to secure such fulfilment is null. But failure without just reason to execute a promise of marriage gives rise to a claim for damages, not only for the material but also for the moral prejudice resulting from it, particularly where the promise has been followed by sexual relations (/c). (.'/) Act 12 ot 18oG and other Acts {j) Aubry et Euxi, v., p. 33, u. 26; quoted by Maasdorp, Joe. cit., n. 23. Laurent, ii., s. 306; D. O. N. (1869), (/i) Act 9 of 1882, 8s. 3, 4. p. 408; 0. Lyou, Dalloz, 1870, v., 290. [hh) iSee pp. 211, 212. (/c) Dalloz, Suppl. s.v. Mariage, (i) See pp. 2(16, 210. mi. 49 et seq. ; Hue, ii., u. 6; M. v. PROMISE OF MARRIAGE. 157 In some of the Continental Codes the matter is dealt with in the same sense by express provision. German Law. — Specific performance of a promise of marriage cannot be enforced, although this was the law formerly in some parts of Germany ; the breach only gives a right to damages, and no claim for damages arises where a party withdraws for good reason (/). The party causing the withdrawal of the other is liable to the other in damages (w), and damages can be recovered in case of seduction. If the marriage does not take place each party can reclaim the gifts given to the other, except in case of death («). The Austrian and Hungarian laws on this point have similar provisions to those of the German Code (o). Italian and Spanish Law. — The Italian (p) and Spanish (q) Civil Codes provide that while breach of promise of marriage gives rise to no legal obligation to contract the marriage, yet if the promise has been made by public act or by act under private signature by a person who had attained the age of majority, or by a minor authorised by the persons whose consent is necessary for the cele- bration of marriage, or if it results from publication made by the registrar, the person who refuses to execute the promise without just reason is bound to indemnify the other party for expenses incurred in view of the promised marriage. Under both Codes the prescriptive period for the action is one year. Swiss Law. — The Swiss Code also forbids the specific enforcement of promises of marriage, and does not allow contractual penalties for a breach of such a promise to be legally enforced (r). Actions may, however, be brought for the repayment of expenses incurred in good faith in expectation of the marriage, or for damages for any severe injury to personal conditions, as well as for the return of presents (s). B. (1892), C. Dijon, Siiey, 1892, ii., 1894, arts. 1—5. 197 ; and cf. N. v. L. (1892), C. Dijon, (p) Arts. 53, 54. ibid., ii., 198 ; Dalle v. P. (1901), (?) Arts. 43, 44. C. Nimes, Sirey, 1902, ii., 206. (r) Art. 91. Specific performance of [1) Code Civil, ss. 1297, 1298. a promise to marry is foi-bidden also (m) S. 1299. ty the existing Federal law of civil (n) Ss. 1300, 1301. status and marriage, art. 26. (o) Austrian Civil Code, arts. 45, (s) Arts. 92—94. 46, 1247; Hungarian Law, XXXI. of 158 THE MARRIAGE CEREMONY — CONTINENTAL SYSTEMS. Until the coining into force of the Code the matter is governed b}^ cantonal law (t). Formalities of Marriage. — The rules of the Continental Codes for the forms governing the constitution of the marriage contract and the rights of interested parties to oppose its celebration do not differ materially from each other. Law of France. — Old French Law. — Celebration of Marriage. — The decrees of the Council of Trent were never admitted as of authority in France. The Ordinance of Blois, art. 40, the Edict of Henry lY., of December, 1606, and the Declaration of Louis XIII. , 1639, art. 1, constituted the marriage law of that kingdom before the Eevolution. It was required that at the celebration of the marriage, four wit- nesses should assist with the cure, who was to receive the consent of the parties, and join them together in wedlock according to the form practised in the church. The priest was prohibited from cele- brating the marriage of any other persons than those who were his own parishioners, unless with the written permission of the cure or Bishop. There must have been a previous publication of banns for three successive days in the church of the parish in which the parties resided, or in the churches of both their parishes, if they resided in different parishes (a). The law of France, until 1787, made no distinction between Protestants and Pioman Catholics. The former, if their religious scruples restrained them from submitting to a marriage by a Eoman Catholic priest, were unable to give to their issue the civil rights of a legitimate marriage. Louis XYL, by an edict of November 16th, 1787, rendered valid the marriage of Protestants, if it were celebrated before certain Judicial functionaries. Thus, as regarded Protestants, marriage was considered as a civil contract, but with Catholics it continued to derive its sanction from religion, until 1791, when, by the constitution of that year, it was declared, " that the law regarded marriage only as a civil contract " (b). Code Civil. — Publication of Banns. — The Code Civil has adopted the (<) See iJer Veilobnisbnich im (o) Pothier, Traite du Mariage, ss. modernen Ee.cht, mit besonderer 349, 362 ; JJ'Aguesseau, torn. 5. iJeriicksichtigung dee Schweizerischeii (/>) I'iSmeiu, Le Mariage en droit I'rivatrechts, by Dr. Hans Zihhnanu Caiionicjue, p. 46 ; The French Eovolu- (Ziirich, 1902); Huber, Schweize- tion, Cambridge Modern History, riscbes Privatrecht, i., 188 — 201. vol. viii., 734. PUBLICATION OF BANNS — CODE CIVIL. 159 principle of the old law. It requires that the marriage should be cele- brated in public, before the civil officer of the commune where one of the spouses had his or her domicil or residence at the date of the publication, provided for by art. 63(c), and in case of public notifica- tion being dispensed with under art. 169 (rf), at the date of such dispensation {e). Before the celebration of any intended marriage the civil officer was formerly required to make two public notifications, at an interval of eight days, the one from the other, but each on a Sunday, before the door of the Mairie (town-hall). Art. 1 of the law of June 21st, 1907 (/) — a law of which the motif was thus described by its author, the Abbe Lemire (•) on default of parents and ascen- dants, has not been obtained ; (b) when the opposition is founded on the alleged insanity of the intending spouse. The opposition, which the tribunal may set aside purely and simjily, is only to be received on condition that the collateral presenting it applies for the interdiction of the S2)0use and obtains it within the period fixed by the j udgment (s). In these two cases the guardian or curator has also a right of opposition during the course of the guardianship or curatelle, provided that he has the authorisation of the family council, which he may convoke for the purpose (t). The act of opposition must state the quality which gives the opposer the right of presenting it : it must contain the election of a domicil in the place where the marriage is to be celebrated, -and must also, unless made at the request of an ascendant, ■contain the grounds of opposition. These provisions are enacted on pain of nullity and of the interdiction of the ministerial officer who has signed the act (/<). After the lodging of an opposition, and till it has been super- seded, the officer is prohibited from celebrating the marriage under penalty (x). The tribunal of first instance decides on the issue within ten days from the application for the withdrawal of the opposition (/y), and if there is an appeal, it is to be disposed of (jj) Aubry et Eau, v., p. 29, n. 6 ; right of opposition either as involved Demolombe, iii., p. 224, s. 140; in his right of applying for the annnl- Laurent, ii., p. 488, s. 379. As to ment of a marriage (art. 190) or by whether one line may exercise its virtue of the general power of super- right of opposition in spite of the intending the execution of the laws consent of the other line, there is given to him by art. 4(5 of the law of some controversy. See Baudrj'-Lacau., April 20th, 1810. The authorities are ii., p. 239, s. 1634. collected in Baudry-Lacan., ii.,p. 250, (). This last provision was added by a law of June 20th, 1896, to art. 179, to prevent parties from allowing such judgments and decrees to go by default and then challenging them simply in order to gain time (c). Belgium. — Opposition can be lodged against a marriage on the same conditions as in France. It has been held by the Belgian Courts that Belgians marrying in a foreign country without clandestinity, and not having had the banns published in Belgium, are validly married, the default of publication of banns not being an essential condition of the validity of marriage. German Civil Code. — The German Civil Code recognises civil marriage alone. The celebration of the marriage has to be preceded by publi- cation, which is of no effect if the marriage is not celebrated within six months after it has been made. The publication may be omitted when one of the parties is suffering from a malady which may entail danger of death and which does not j^ermit of the marriage being postponed. Publication may also be dispensed with ((/). This publication must be made within the districts where the spouses are domiciled, and if one of the parties resides outside the place of his domicil, also in the place of his residence, and if the domicil has been changed within the last six months, also within the old domicil. The notice containing the publication must be afHxed at the door of the town-hall or other similar buildins. and if the place at which the publication must be made is outside the German Empire the notice must instead be published in one of the newspapers published in such place. The publication must continue for two weeks. Before publication can take place certain (z) Art. ITS. to reopen the case. As to the history («) Art. 1 79. of the right of opposition in French (h) Opposition is a term used in hiw, see Baudry-Ijacan., ii., p. 69,. French law in various senses. When s. 1409, and p. 2.'i4, s. 1(528. used in reference to a judgment by (c) Lois Annotees, 189C, p. 121. default it means a notice given by the {d) Ss. 131(), 1322. defendant, which compels the plaintiff GERMAN LAW AUSTRIAN LAW. 165 documents must be produced to the registrar ((^). The man-iage ceremony is performed by means of an unconditional declaration made by both spouses before the registrar to the effect that they wish to be married to each other (/). These declarations are made in answer to questions put to each spouse separately by the registrar in the presence of two witnesses, and after the declarations are made the registrar declares that the spouses are man and wife according to law, and an entry is then made of the marriage in the marriage register (g). Any person who publicly acts as registrar is deemed to be a competent registrar, notwithstanding the fact that he is not qualified as such, unless he was so to the knowledge of the parties (/f), and the registrar competent to perform the marriage is the registrar of the district in which one of the spouses is domiciled or usually resident, or the registrar of another district appointed by him (i). If neither of the parties has his domicil or habitual residence in Germany, and at least one of them is a German, the competent registrar for the purpose is designated by official authority. If neither of the parties is a German subject, nor is domiciled or usually resident in the German Empire, a marriage between them is impossible {k). Austrian Law. — In Austria both religious and civil forms of cele- bration of marriage are recognised, the latter being confined to persons who do not belong to any legally recognised religious denomination. The former consists of a solemn declaration before the usual minister of the bridegroom or bride or his representative and in the presence of two witnesses (/) , the latter of a like declaration before the civil authorities in the presence of two witnesses and a registraY {schrift full rev) (in). The ceremony must be preceded by publication (aufgebot), which consists of an announcement of the intended marriage («) ; in the former case this is made verbally on three Sundays or festivals in the churches which the parties attend (o), in the latter by public notice to the authorities of the domicil of each party at least three weeks before the ceremony (j^). (e) Statute of 1875 on Personal {I) Austrian Civil Code, art. 75. Status, ss. 44 — 50. (to) Tiaw of May 25tli, 1868, arts. 2, (/) S. 1317. 7; Eeichsgesetz Blatt, n. 47. Ig) S. 1318. {),) Civil Code, art. 70. (A) S. 1319. (o) I hid., art. 71. (i) S. 1321. {]>) Law of May 25th, 1868, art. 5. {k) Ss. 1320, 1321. 1G6 THE MARRIAGE CEREMONY CONTINENTAL SYSTEMS. A publication is valid for six months, and must he renewed if the marriage is not concluded within that time (q). In the former case the second and third publications can be dispensed with by the civil authorities, and in the latter the prescribed period can be similarly shortened, and in urgent circumstances publication can be foregone entirely (r). The publication requires information to be given of any impediment to the marriage known to any person. Hungarian Law. — By the Marriage Law (No. XXXI.) of the year 1894, obligatory civil marriage was introduced into Hungary (except in Croatia, where the system of ecclesiastical marriage laws remained in vigour). The principles of this law are similar to the system of the German Code as laid down above. The Hungarian law makes detailed provisions for marriages celebrated by foreigners in Hungary or by Hungarians abroad (s). Italian Law. — Civil marriage was abolished in Italy on the fall of Napoleon. In 1848 a measure establishing civil marriage was adopted by the Chamber of Deputies of Turin, but rejected by the Sardinian Senate (0- The Italian Civil Code, like the German and French Codes, secularises marriage. As a general rule, the marriage must take place in the town-hall of the commune where one of the future spouses is domiciled or resident, but if reasons of necessity or convenience require it, the registrar of the proper district may request the registrar of another to officiate. If, however, one of the spouses is prevented from attending at the town-hall by ill- ness or otherwise, then the registrar with his secretary attends at the residence of such disabled sj^onse, and there in the presence of two witnesses performs the marriage. The ceremony consists in the registrar's reading to the parties certain sections of the Code which define the principal reciprocal rights and duties of husband and wife, and of his receiving from each an unconditional declara- tion that they desire to become husband and wife ; whereupon he, in the name of the law, declares them to be man and wife, and the marriage is then entered in the marriage register (?0- (y) Civil Code, art. 7^. llaager Familienreclits Conveiitionen (r) /hid., arts. 8r>-87 ; Law of (Zeitschr. f. Intern. Privat. u. Off. May 25th, 1868, art. 5. Recht, Bd. xviii.). («) Fereuczy, Le droit international {t) Prudhomme, Code Civil, Ital., jiriv^ dii inariago en Ilongrio (Revue p. xxxvi., u. 2. de droit intern. i)rive, 1<)(M>, No. 1) ; (») Arts. 93—97. Schwartz, Ungarns AuHchluss an die ITALIAN LAW. 167 The celebration of the marriage has to be preceded by two publi- cations to be made by the registrars of the districts in which the spouses respectively reside ; in the case of such residence having lasted less than one year the publications must also be made in the last preceding place of residence. The formalities relating to publication are similar to those of the French and German laws (a). A formal promise of marriage justifies an application for publication (b). The registrar cannot proceed to publica- tion without the necessary consents. If he declines to proceed he is required to give a certificate stating the grounds of his refusal, and an appeal lies to the civil tribunal, which decides the case on the report of the Public Procurator. The marriage cannot be celebrated before the fourth day from the last publi- cation, and the publications will be considered as of no effect unless the marriage takes place within 180 days, reckoned from the date of the last publication (c). Provision is made for dispensation (d). The future spouses are required to produce to the registrar of the district in which they propose to be married certificates of birth, and, in the case of second marriages, certificates of the death of the former spouse or of the dissolution or nullity of the previous marriage, and the documents proving the requisite consents and the certificate as to publication and of dispensation and such docu- ments as may be deemed necessary according to the circumstances of the case(e). Opposition. — The celebration of a marriage may be opposed on any ground recognised by the law as an obstacle to it by the father and mother, or in default of them by the grandparents, even when the contracting parties have completed their twenty-fifth year in case of a male, and twenty-first year in case of a female. Where there are no ascendants certain other specified relatives may oppose the marriage on the ground of want of the consent required by art. 65, or mental disorder. The existing spouse of a person pro- posing marriage can also oppose it(/). Where a widow is proposing to marry within ten months of the dissolution of the marriage the right of opposition belongs to the nearest of the ascendants and to (a) Arts. 70 — 73. {d) See art. 78. {h) Art. 73. (e) Arts. 78— 8L (r) Arts. 7-1—77. (/) Art.s. 82—85. 168 THE MARRIAGE CEREMONY CONTINENTAL SYSTEMS. all the relatives of the first husband (//). In the case of a precedmg marriage having been annulled the person with whom that marriage had been contracted can equally oppose. The Public Procurator must oppose a marriage if he has knowledge of any impediment. Every act of opposition must state the locus standi of the ojjposer as well as the grounds of opposition, and must contain the opjDOser's election of domicil within the jurisdiction of the Court of the district where the marriage is to be celebrated. Notice of opposi- tion is to be served in the same manner as a writ on the future spouses and the registrar before whom the marriage is to take place (h). A duly formulated and authorised opposition suspends the celebration of a marriage till it has been definitively disposed of. When it is rejected, any opposer, other than an ascendant or the Public Procurator, may be cast in damages. The above rules do not apply to the King or the Koyal Family (i). The registrar cannot refuse to proceed to the celebration of a marriage unless for some cause recognised by the law. In case of refusal he is required to give a certificate stating his reasons, and if the parties think the refusal unjust, the tribunal will decide the question, the Public Procurator being heard, and a right of recourse to the Court of Appeal being reserved. In the case of the marriage of the King or any member of the Eoyal Family the registrar is the President of the Senate (k). Spanish Law. — The law of Spain recognises two forms of marriage : — I. Canonical Marriage, reserved for j)er8ons professing the Roman Catholic religion. II. Civil Marriage, contracted in the form prescribed by the Code (/). The })rovisions of the Code with reference to promises of marriage (///) and impediments to marriage (n) and the civil effects of marriage are common to both forms (a). I. The Canonical Marriage. — The conditions, forms, and solemnities are regulated ])y the constitutions of the Konian Catholic Church ((J) Art. 86. {m) Arts. 4;J, 44 ; and p. 167, (h) Art. 89. supra. (t) Art. 92. [ii) Art3. 45 — 52, supra. {k) Arte. 98, 99. (a) Art. 76. (0 Art. 42. SPANISH LAW — CANONICAL MARRIAOE. 169 and of the Council of Trent (^), which are received as laws of the kingdom. The municipal judge or other State functionary is required to be present for the sole purpose of assuring the imme- diate inscription of the marriage on the civil register. For this purpose, the contracting parties are bound to intimate to the muni- cij)al council, twenty-four hours before, the day, hour, and place of marriage, under a penalty of from five to eighty pesetas. The municipal judge is bound, under a penalt}^ of from twenty to a hundred pesetas, to give the contracting parties a receipt of this notice, and the marriage cannot be proceeded with till this receipt has been presented to the aim of the parish. If the marriage is celebrated without the presence of the municipal judge or his delegate, although the contracting parties have notified it to him, the transcription of the act of canonical marriage on the civil register will be made at his expense, and he incurs besides liability to a fine of from twenty to a hundred pesetas. In this case the marriage will produce all its civil effects from the moment of its celebration. If it is the contracting parties who are at fault they may repair it by applying for the inscription of their marriage on the civil register. In this case the marriage will only produce its civil effects from the date of the inscription (e). Persons who propose to contract a canonical marriage in articulo mortis may notify it to the functionary charged with the civil register at any moment before the celebration, and may give, in any form, a mandate to a third party to fulfil this obligation. The penalties for the omission of this formality are not applicable to such marriages if it has been impossible to comply with them in time. In any case, however, in order that the marriage may produce its civil eti'ects from the date of its celebration, the religious act must be inscribed on the register within the ten days following the celebration ((/). The canonical secret marriage celebrated before the Church without the presence of the civil magistrate is not subjected to any of the formalities of the civil law, but it only produces civil efit'ects after its publication by means of inscription on the register. This form of marriage produces, however, its civil effects from the date of its celebration if the two contracting parties with one accord solicit {b) Art. 75. (d) Art. 78. (c) Art. 77. 170 THE MARKIAGE CEREMONY CONTINENTAL SYSTEMS. from the Bishop who has authorised it a copy of the act inscribed on the private register of the Bishop and forward it directly with the desired reservation to the general direction of the civil register and demand their inscription. For this purpose the general direction keeps a special and private register, and takes the pre- cautions necessary to secure the secrecy of its contents till the parties call for their publication by their transcription on the municipal register of their domicil(e). In the case of canonical marriages the cognisance of suits for nullity and separation ])elong8 to the ecclesiastical tribunals (/) . The execution of the decree belongs, however, to the civil authority (g). The definitive decree in a suit for nullity or separation is inscribed on the civil register and presented to the ordinary tribunal to secure its execution as regards its civil effects (//). II. The Civil Marriage. — Parties are required to present to the municipal judge a declaration signed by them and stating their names, conditions, professions, domicil or residence, and those of their parents. To this declaration is added the acts of birth and status of the parties, and the prescribed authorisations or consents or dispensations (?). A marriage cannot be celebrated unless the party is really present or represented by a mandatory having a special power of attorney ; but it is necessary to have the presence of the contracting party who is domiciled or resident in the district of the judge who is to celebrate the marriage. The power should indicate the name of the person with whom the marriage is to be contracted, and it will be valid unless before the celebration notice of its revocation has been given in authentic form to the mandatory (k). The municipal judge, with tbe preliminary consent of the fiances, announces the intended marriage by publication during a period of fifteen days. The publication gives all the details men- tioned in the parties' declaration, and calls upon all persons having knowledge of any impediment to declare it ; similar notices are sent to the municipal judges of the communes where the interested {ft) Alt. 79. but althou^'h the Code Civil has only (./) Art. 80. prohibited it by implication in art. 75, (f/) Arts. 68, 81. the unanimoTis opinion of the jurists (h) Art. 82. is that it is no longer admistiible iu (0 Art. 8H. France: Demolombe, iii., n. 210; (/■•) Art. 87. Marria^^e by procura- Lcve, Cod. Civ. Esp., p. 24, n. 1. tioii wasrecogninod in <>\d French law ; SPANISH LAW CIVIL MARRIAOK. 171 parties have had their domicil or their residence during the two last previous j^ears. These notices are puhlished for a period of fifteen days in the public audience hall, and are then returned with an attestation that this formality has been complied with and that no impediment has been notified (I). Soldiers on active service who intend to marry are dispensed from publication beyond the place of their residence on presenting a certificate that they are free to marry from the chief of the corps to which they belong (?»)• If the interested parties are foreigners, or have not had two years' residence in Spain, they may prove by a formal certificate, given by the competent authority, that in the place where they have had their domicil or their residence during the two preceding years publication of the intended marriage has been made with the required solemnities (»)• In all other cases the Government may itself dispense with publication for serious reasons, duly estab- lished (o). Notwithstanding the above provisions, the municipal judge may authorise the marriage of persons in imminent danger of death who are domiciled in the locality or passing through it. Such marriages are conditional on legal proof of the freedom of the contracting parties being adduced (p). Similar marriages, subject to the same condition, may be authorised by the officers of men-of- war, and the captains of merchant vessels (q), and the chiefs of military corps en campagne (r). On the expiry of the period of fifteen days above referred to, without any impediment having been notified, the municipal judge being unaware of any himself, the celebration of the marriage is proceeded with in the prescribed manner (s). If more than a year has elapsed since publication without the marriage having been celebrated a new^ publication is necessary (s). If before the celebration of the marriage opposition, on the allegation of a legal impediment, is notified, the celebration is suspended till the non-existence of the impediment has been declared by a definitive judgment (0- All persons having know- ledge of the project of marriage are bound to declare any impediment (0 Art. 89. (q) Art. 94. (/«) Art. 90. (r) Art. 95. (n) Art. 91. (s) Art. 96. (o) Art. 92. (0 Art. 97. Ip) Art. 93. 172 THE MARRIAGE CEREMONY CONTINENTAL SYSTEMS. to it of whose existence they are aware. The declaration of impedi- ment is forwarded to the ministere fiscal, who, if it has a legal basis, forniuhites an oi)position. Those private individuals alone who have an interest in preventing a marriage can themselves formulate an opposition to it (»). In either case the o[)position is presented in conformity w'ith the law of civil procedure and disposed of as an incident («). If a definitive decision declare the impediment false or not sufficiently proved, the party who has put it forward is liable for the damage and prejudice suffered (x). The marriage is celebrated when the two contracting parties or one of them and the person who has obtained from the absent party the special power of attorney, as well as the two witnesses, who must be majors and without any legal incapacity, appear before the municipal judge (^). The procedure is practically iden- tical with the Italian law above described (z). The consuls and vice-consuls exercise the functions of municipal judge as regards the marriages of Spaniards contracted abroad (y). Swiss Law. — The celebration of marriage in Switzerland is at present governed by the Federal Law of Civil Status and Marriage of December 24th, 1874, which recognises none but civil marriages, and forbids the celebration of any religious ceremony without pro- duction of the certificate of civil marriage (a). A marriage celebrated within the territory of the Confederation must be preceded by the publication of the promise to marry in the place of residence and the home of each of the spouses (h) ; as in Germany, this publication is ineffective unless the marriage takes place within six months (c). PubHcation is the duty of the officer of civil status, and is carried out by way of advertisement in a i^ublic place, or in the official gazette ((/). The form of celebrationis similar to that prescribed by the German Code ( When the Code comes into force, the art. 7 e (Final Title of Code, art. 61). rules for the marriage of a foreigner (i) Law of 1874, art. 34. See above, will be different. If he is domiciled pp. 100, 103, 104, 112, 120. in Switzerland he must obtain jser- [j) The presumption of consent is mission to have his marriage cele- excluded by compulsion, deceit, or brated from the Government of the mistake of jierson. Canton where he is domiciled, and (A-) Art. 35. The consent of the such permission cannot be refused if parents or guardian is required only the State to which he belongs makes a where the intended spouse is under declaration that his marriage will be age. An appeal against the refusal recognised with all its effects. If he of the guardian's consent lies to the is domiciled abroad the corresponding competent guardianship authority, permission must be obtained from the (/) See Civil Code, arts. 97, 98, 100,. Government of the Canton where the 103. marriage is to be celebrated, and in {ni) Art. 96. this case proof of the recognition by 174 THE MARRIAGE CEREMONY BRITISH DOMINIONS, ETC. The consent of the parent who exercises the jjaternal po^Yer is sufficient, if it is exercised by one of them alone (»). The Code also introduces the impediments of interdiction (o) and relationship by adoption (p), and permits a marriage to be dissolved if either spouse has been judiciall}' declared to have disappeared () Art. 99. Interdicted persons Harrison v. Cage (1798), 1 Eayni. have a right to appeal against their (Lord), at p. 387. guardian's refusal of consent to the (c) As regards Scotland, see 37 & 38 guardianship authority, and the appeal Vict. c. 64, s. 3. may in the last resort come before the ('/) 32 & 33 Vict. c. 68. Federal Court. (e) S. 2. (//) Art. 100. (/) Willcox v. Gotfroy (1872), 26 Iq) Ai-t. 102 ; see arts, 35—38. L. T. 328 ; and see Bessela v. Steru (a) Art. 103. (1877), 2 0. P. I). 265. PROMISE OF MARRIAGE — ENGLISH AND SCOTS LAW. 175 to be sufficient corroboration to support the plaintiff's case (//). The plaintiff must have assented either expressly or tacitly to the defendant's proposal {li). If no time or condition is prescribed for the fulfilment of the promise, the promise is taken to be one to marry in a reasonable time (i), but if a conditional contract is repudiated by the defendant before the condition is fulfilled, either by express words or by his putting it out of his power to fulfil the contract, for instance, by his marrying another person, a right of action accrues to the aggrieved party at once (k). The following are good defences to the action : (a) The existence of a legal barrier to the union, if known to both parties at the time of the promise (l) ; (b) discharge by mutual agreement (//() ; (c) the unchastity of the plaintiff after the engagement, or before it, if unknown to the defendant at the date of his promise {)i) ; (d) fraudu- lent misrepresentation or concealment of material facts as to the character, position, or previous history of the plaintiff (o). It is no defence that the defendant was a married man at the time of his i^romise, unless the plaintiff' was aware of the fact, when such a promise is void as against public policy (jj); or that since the promise the defendant has by reason of physical infirmity become unfit to marry {q). In England an action of breach of promise cannot be brought either by (/•) or against («) the executors of the person to, or by, whom the promise was made, exce^^t in case of special damage and to the extent of such damage. Apparently the same rule would be followed in Scotland as regards an action by executors (^), unless it were lis pendens at the time of the ((/) Wiedemann v. Walpole, [1891] C. &P. 350; Wharton r. Lewis (1824), 2 Q. B. 534. 1 C. & P. 529 ; Foote v. Hayne (1824), (/i) Vinealbj. Veuess(1865),4F.&F. 1 C. & P. 546; Fraser, ad Joe. cit., i., 344; and as to Scotland, see Fraser, 491. Hnsband and Wife, i., 496. (^0 Millward ;;. Littlewood (1850), {i) Potter V. Deboos (1815), 1 Stark. 5 Exch. 775 ; Spiers v. Hunt, [1908] 1 N. P. 82. K. B. 720; Wilson v. Carnley, ibid., {k) Frost V. Knight (1872), L. E. 7 729. Ex. 111. ('/) HaU ^^ Wright (1858), E. B. &E. {I) Millward v. Littlewood (1850), 746. 5 Exch. 775. (r) Chamberlain v. Williamson (m) Davis v. Bomford (1860), 6 (1814), 2 M. & S. 408. H. & N. 245. (s) Fmlay v. Chiruey (1887), 20 {n) Jones v. James (1868), 18 L. T. Q. B. D. 494. 243. {t) Fraser, i., 488. (o) Irving v. Greenwood (1824), 1 176 THE MARRIAGE CEREMONY BRITISH DOMINIONS, ETC. pursuer's death (u). But an action would, it seems, lie against the executors of the promisor (r). Laws of the Colonies. — Breach of promise is actionable in certain of the colonies by statute, e.fi., Ceylon, British Guiana, and Natal (x). Law of the United States. — As in England, " the agreement to marry is quite distinct in its nature and consequences from that mutual consent to present marriage which superinduces the status " (a). It is an executory contract, founded in most cases on the mutual promise of the parties as a consideration. In the ai)sence of restrictive legislation on the point, a promise of marriage may be written (/;), or oral (c), or constituted by the acts of the parties (d). The parties must be competent in law to intermarry at the time when the promise is made. But a party who by marrying another person becomes disqualified (f'), or who refuses in advance ( /") to fulfil an agreement to marry, is immediately liable to an action for breach of promise of marriage. And a single woman may have her breach of promise action against a married man whom she believes to be single, if he contracts to marry her(r/). The parties must act towards each other in good faith ; and any deception, fraud, or vital mistake, e.g., as to such matters as ante- nuptial chastity, capacity for intercourse, and sanity {h), will invalidate the agreement of the party misled (a). So also either party may rescind the promise for supervening misconduct "of a nature and to a degree not quite definable yet far less than would be required for divorce after marriage " (a), («) Walton, Husband and Wife, 29.'3 N. Y. 246. —294. (.). Tt seems that for not publishing, after due notice, the banns of a baptised and confirmed parishioner, a clergyman would be liable to proceedings under the Church Discipline Act, 1840(g), although probably not to a criminal indictment for misdemeanour, either at common law or under the Marriage Act (r). The point has been raised but not decided, whether, under any circumstances, a civil action will lie against a clergyman for refusing to celebrate a marriage ; apparently, if such an action will lie, it would be neces- sary to show a malicious and unreasonable refusal and actual temporal damage (s). The Marriage and Registration Act, 1856 {t), provides that, when one of the parties resides in Scotland, a certifi- cate of proclamation of banns in Scotland, by the Session clerk of the parish, shall be as valid and effectual as in England is a registrar's certificate. Marriage by Licence. — There are three forms of marriage licence : (a) The common licence of the Ordinary (?/) ; (b) the sj^ecial licence of the Archbishop of Canterbury (.r) ; (c) the licence of the superin- tendent registrar (^). (a) The common licence is a dispensation by virtue of which a (m) 4 Geo. IV. c. 76, s. 22. (aws of ;j3 L. T. (0. S.) 70. England, p. 164. (m) 6Edw. VII. c. 40. This will not (/i-) I)e Wilton v. Montefiore, [1900] come into force until it is applied 2Ch. 4.S1. In this case it was held by by Order in ('tmncil to a particular Stirling, J., that tho (/ida of Lord country, and no such Orders have yet Stowell in Jiiiido /'. IJelisario (1795), been made. ENGLISH LAW — FOREIGN MARRIAGES. 185 The present statute regulating this matter is the Foreign Marriage Act, 1892 («), and the Orders in Council, 1892 and 1895, made under it, by which marriages may take place between British subjects (/)) in accordance with the rites of the Church of England or any other form or ceremony that the parties desire containing the declaration specified in the Act, by or by another person in the presence of British diplomatic officers, such as Ambassadors or Consuls at their official houses, or by naval officers commanding a King's ship on a foreign station so authorised by a Secretary of State, on board that ship (p), or a Governor, or High Commissioner, Resident, or other substituted officer, within or without British dominions. Such marriages are subject to similar conditions as to notices, consents, objections, hours of celebration, witnesses and registration, as if taking place in the United Kingdom, and if so are valid as if they had taken place there. One of the i^arties must sign a notice stating the name, surname, profession, condition, and residence of each of the parties, and whether each of them is or is not a minor, and that they have resided within the district of the marriage officer to whom the notice is addressed not less than a week then next preceding ((/). Each party must also take an oath before marriage that he or she believes that there is no impediment to it by reason of kindred or alliance or otherwise, that they have for three weeks immediately preceding had their usual residence within that district, and that if either is a minor, not being a widow or widower, the proper consents have been obtained {r). Tiie Act only requires one of the parties to be a British subject (a), but it empowers a marriage officer to refuse to solemnise or permit a marriage to be solemnised in his presence (») 55 & 56 Vict. c. 20, repealing c. 29, and 1908, 8 Edw. VII. c. 26. and reproducing the former statutes: (o) Under the Act 4 Geo. IV. c. 91, 1824, 4 Geo. IV. c. 91 ; 1849, Consular it was held that for this purpose only Marriage Acts, 12 & 13 Vict. c. 68 ; the nationality of the husband is re- 1868, 31 & 32 Vict. c. 61 ; Marriage garded, neither his domicil nor the Act, 1890 (53 & 54 Vict. c. 47), s. 47; nationality of his wife being material : Foreign Marriage Act, 1891 (54 & 55 Wright's Trusts (1856), 25 L. J. Ch. Vict. c. 74). See also for special 621. statutes legalising British marriages {}>) Foreign Marriage Act, 1892, in Russia, 1824, 4 Geo. IV. c. 67, and ss. 11, 12. Greek marriages in England, 1884, {q) Ibid., s. 2. 47 & 48 Vict. c. 20, not good by the (;•) Ibid., s. 7. local law, and marriages on board (a) Ibid., s. 1 British men-of-war, 1879, 42 & 43 Vict. 186 THE MARRIAGE CEREMONY BRITISH DOMINIOKS, ETC. which would in his opinion be inconsistent with international law or the comity of nations, subject to an appeal to the Secretary of State (^). The Orders in Council, however, require both parties to be British subjects, and this is in accordance with the recognised modern rule of i^rivate international law on this point ; and the English decisions have established that a marriage of foreigners in an Ambassador's chapel, without banns or licence, is null, where neither party is of the country or suite of that Ambassador, certainly in a case where the man belonged to another suite, and the woman was not described as domiciled in any Ambassador's family, though she had acquired a matrimonial domicil by a month's residence in England (c). The Act expressly saves the validity of any marriage solemnised beyond the seas otherwise than according to its provisions (d) ; and therefore such marriages where they would have been valid apart from legislation are equally, it seems, valid now, and will for all British subjects be governed by the common law of England (e). It may be assumed that no British subject can be party to an exterritorial marriage in England celebrated before a foreign officer, diplomatic or consular (/). Naval Marriages. — By a recent Act, provision is made for the celebration of marriages after publication of banns and issue of certificates on board ships of the Eoyal Navy (g). Marriages within Lines of British Army. — Marriages solemnised within the British lines by any chaplain or officer or other person officiating under the orders of a commanding officer of a British army serving abroad are as valid as if solemnised within the United Kingdom with due observance of all forms required by law {Ji). This confirms the former decisions, namely, that in the case of a military force stationed in a conquered country for the purpose of enforcing the obedience of the natives, and composing for the time (6) S. 19. Marriages of members of [1896] P. 116. tlie British Royal Family are also (e) Marriage Commission's Report, exempted from its provisions : s. 23, 1868, p. 1 ; Dicej', 620 ; and see In re see p. 183. Johnson, [1903)] 1 Ch. 821. ((•) Portreis t'.Tondear(1790), 1 llagg. (/) Dicey, 620, citing Marriage C. R. 136; Lautour c. Teeadale (1816), Commission's Report, p. xxxviii. 8 Taunt. 830 ; Bailet v. Bailet, May, (//) Naval Marriages Act, 1908 (8 1901, L. M. &R., xxvi., p. 347. See Edw. VII. c. 26). p. 271,7'(.8/. (/,) Foreign Marriage Act, s. 22. (d) S. 23. See Culling r. Culling, IRISH LAW. 187 " a distinct and immisceable body," the law of the coiK^uered country is not that to which the subjects of the conquering country are bound to conform. It is competent for them to contract the mar- riage according to the law of their own country. The law of France was held not to apply to an officer of the English army of occupation marrying an English lady, on the ground that at that time, and under such circumstances, the parties were not French subjects under the dominion of French law. The same principle would be applied to the condition of a garrison of a subdued country (t). Irish Law. — The marriage law of Ireland is regulated, so far as the formalities go, by statutes of which the most important are the Marriages (Ireland) Act, 18-I-1 (y), the Marriage Law (Ireland) Amendment Acts, 1863 and 1878 {k), and the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 (/). Statutory provision is made for marriages being celebrated according to the ritual of : (a) The Irish Episcopal Church ; (b) the Presbyterians ; (c) Quakers and Jews ; and for a civil ceremony before the registrar on lines practically the same as the English law as regards banns, notices, licences, and the like. Special licences may be granted by the Archbishop of Armagh (//() for any persons, or by any Bishop of the Irish Church (u), or by heads of religious denominations, such as the Moderator of the General Assembly of the Irish Presbyterian Church, and including the clerk to the yearly meeting of the Society of Friends in Ireland (though not it seems the chief officer of the Jews), where both parties belong to the same denomination {<>). Otherwise the marriage hours are 8 a.m. to 2 p.m. (ji). Eoman Catholic marriages are not touched (i) Bvu'n V. Farrar (1819), 2 Hagg. on a statutory basis. As to tlie old C. E. 369; Eex c. Biampton (ISOS), statute law, see Burge, vol. i., 1st ed., 10 East, 282 ; Euding v. Smith (1821), pp. 169—171. 2 Hagg. C. E. 371. (A-) 26 & 27 Vict. c. 27; 36 & 37 (J) 7 & 8 Vict. c. 81, passed iu con- Vict. c. 16. sequence of tlie decision of the House (/) 33 & 34 Vict. c. 110 (mixed of Lords in E. v. Millis (1844), 10 marriages, s. 38) ; and see 34 & 35 CI. & F. 534; 17 Eul. Cas. 66, that a Vict. c. 49, ss. 2, 21—29. marriage celebrated in Ireland by a (tn) 7 & 8 Vict. c. 81, s. 2. minister of the Presbyterian Church (n) 33 & 34 Vict. c. 110, s. 36. according to its rites was not valid. [u] Hammick, 236 ; 33 & 34 Vict. The Act places the marriage of c. 110, s. 37. Presbyterians and other bodies in (p) 7 & 8 Vict. c. 81, s. 29 ; 26 »S: 27 Ireland not recognising priesthood, Vict. c. 27, s. 7. 188 THE MARRIAGE CEREMONY BRITISH DOMINIONS, ETC. by statute except as regards registration (q), the grant of licences by Eoman Catholic Bishops where both parties or one are or is Eoman Catholic (r), and the power of Eoman Catholic priests to marry Eoman Catholics to persons of other persuasions (s), in the last case the marriage hours being fixed as above. Otherwise a marriage of Eoman Catholics by a priest is good, at whatever hour or place it is performed, and in whatever manner, without any restrictions as to consent, residence, notice, or banns, being governed by the decree of the Council of Trent (parish priest or a priest authorised by him and two witnesses), and even its non-observance as to l)anns does not affect the marriage (0, but if one of the parties is a Protestant the marriage was and is invalid. There are similar provisions to those of English law as regards marriage of minors, for which consent of parents or guardians is required (u), and forfeiture of property accruing to parties marrying by fraudulent means as to notice, name, and the like (x) ; and an earlier law declared that the marriage of minors had without such consent should be void if proceedings to avoid them were taken within a year(?/). Breach of a condition of a mixed marriage nullifies the marriage, as will also want of due publication of banns, licences, registrar's certificate or licence, or celebration in an unauthorised building (^;). For a marriage to take place in Ireland, where one party resides in Scotland or England, a certificate is required of proclamation of banns in the one case, or from the superintendent registrar of the party's residence in the other case, respectively, and the marriage is by licence (a). For a marriage in England, where one party resides in Ireland, a certificate is required from the Irish district registrar {b). The system of registration in Ireland is the same as the English for Episcopalians, but not for other denominations (c). (7) Hamtnick, 233; 26 & 27 Vict. {n) 7 & 8 Vict. c. 81, s. 19. c. 90, passim. (.r) I hid, s. 51. (r) 34 & 35 Vict. c. 49, ss. 24—27. {>j) Act 9 Geo. II. (I.), c. 1 1 ; Steele r. («) 33 & 34 Vict. c. 110, ss. 38, 40. Braddell (1838), Milw. Eccl. Eep. 1 ; {t) Hammick, 233; Marriage Com- cited in Brook v. Brook (1861), 9 mission lleport, 1868, Irish Law, H. L. C. 193, at p. 201. pp. 11— 17; Smith c. Maxwell (1824), (2)33 & 34 Vict. c. 110, s. 39; Ey. & Moo. 80 ; 1 C. & P. 271 ; 7 & 8 Vict. c. 81, s. 49. Bruce ". Burke (1825), 2 Addams, («) 9 & 10 Vict. c. 72, ss. 1, 2. 471 ; Yelverton v. Longworth (1864), (/;) 19 & 20 Vict. c. 119, a. 7. 4 Macq. II. L. ('. 745. (c) See Ilanuuick, 232 ; and for SCOTS LAW REGULAR MARRL-VGES. 189 Scots Law (d). — The basis of the Scots marriage law is the canon huv. Till 1834 only ministers of the Established Church in Scotland and Episcopalian clergy could marry regularly (e). For a marriage in England, where a party resides in Scotland, a certificate of proclamation of banns in Scotland is required ; for a marriage in Scotland, where a party resides in England, no preliminary steps can be taken in England (/). Under the law of Scotland marriages are either regular, clandestine, or irregular. Regular Marriages. — The regular marriage (g) is one celebrated by a minister before at least two witnesses after due proclamation of banns or on a registrar's certificate. Fifteen clear days' resi- dence in a parish is necessary to entitle the parties to have their banns proclaimed (//). Proclamation is required to be made on three separate Sundays by the minister in presence of the congregation. But the minister may, if he knows the parties or is satisfied that there is no impediment to their union, complete the proclamation on a single Sunday. On the expiry of forty-eight hours after the proclamation of the banns, the minister may grant a certificate of publication, and at any time within three months thereafter the marriage may be celebrated. Protestant Dissenters from the Established Church of Scotland must have their banns proclaimed in their parish church. Under the Toleration Act, 1711 (i), Scotch Episcopalians are required to have their banns proclaimed in their own churches. But it is said(j) that this provision has fallen into desuetude. As an alternative to proclamation of banns the Mar- riage Notice (Scotland) Act, 1878 (A;), enables a regular marriage to be constituted after obtaining a registrar's certificate that notice of Eoman Catholics, 26 & 27 Vict. c. 90. 326, 431 ; aud a paper by Professor Eor the Irish Church's coutinuing duty Goudy, Int. Law Association, Glas- in this respect under the Act of 1844, see gow Conference Eeporfc, 1901, p. 243. E. V. Magee (1893), L. E. L 32 Q. B. (e) 10 Anne, c. 7; 4 & 5 WilL IV. &Ex. 87. c. 28. (d) On the whole subject of the (/) ilammick, 221 — 231. forms of marriage under Scots law, see (y) Fraser, Husband aud Wife, i., Eraser, Husband and Wife, i., 258 289 ; 17 & 18 Vict. c. 80, s. 46. ei seq.; Walton, Husband and Wife, (/') Act of Assembly, VIII. , May p. 14 ; and a very learned article by 29th, 1880, sess. 2. the writer last named, s.v. Marriage, (') 10 Anne, c. 10, s. 7. in Encyclo. Scots Law, viii., p. 256 ; {j) Encyclo. Scots Law, ii., p. 24. and an article by Stocquart, Law {k) 41 & 42 Vict. c. 43. Magazine and Eeview, 1903, xxviii., 190 THE MARRIAGE CEREMONY BRITISH DOMI^'IO^•S, ETC. the intended marriage has been given in the manner prescribed by the statute. It seems (/) that the Act does not apply where one party is not resident in Scotland. There are no canonical hours for marriage in Scotland (m), and the marriage is comjilete ^Yhen the consents of the parties have been exchanged. Consummation is not necessar}'. Clandestine Marriages. — A clandestine marriage is now (n) practi- cally one celebrated (a) by a minister without due proclamation of banns, or (b) by a layman assuming the character of a minister (o). Penalties against persons celebrating (j)), or being parties {q) or witnesses (r) to such marriages, are enacted by old Scots statutes ; and the Marriage Notice (Scotland) Act, 1878 (?v), provides that any person otherwise entitled to celebrate a marriage who does so without certificates of due proclamation of banns or registrar's certificates of notice, is liable to a penalty of £50 (s). Irregular Marriages. — There are three forms of irregular marriage in Scotland : I. Marriage pe?" i^erha cle prceseiiti. II. Marriage by promise, suhsequente copula. III. Marriage by cohabitation and "habite and repute." I. Marriage j^er verba de j^rasenti is constituted by the mere interchange of consent, assuming such consent to be genuine and the parties to be under no incapacity or disqualification for the contract (0. It is not necessary that the exchange of consents should be made in the presence of witnesses, although the absence of witnesses may make it impossible to prove the marriage if not followed by cohabitation, or if there is no acknowledgment in writing {u). Consent may be proved either by parol or by writing. It has been doubted whether, in a case of declarator of marriage, {I) Circular of Eegistrar-Goneral (rr) 41 & 42 Yict. c. 43. for Scotland of December 30th, 1878, (s) S. 12. quotediiiEncyclo. ScotsLaw, ii., p. 25. {t) In the case of parties non-resi- {■m) Eraser, Husband and Wife, i., dent in Scotland, twenty-one clear 282, 289. ■ days' residence in that country imme- (n) As to the old forms of clandes- diately preceding the marriage per tinity, see article Marriage, Encyclo. verba de pr(^senti is required : Lord Scots Law, viii., pp. 257, 258. Brougham's Act (19 & 20 Vict. c. 96), (o) H.M. Advocate v. Ballantyne s. 1; Lawford v. Davies (1878), 4 (1859), 3 Irvine, 352, 3G9. P. D. 61. {l>) C. 240 of 1661 ; C. 6 of 1698. (») Marriage Commission Eeport, {q) C. 246 of 1661. 1868, p. xvi ; Eraser, Husband and (r) C. 6 of 1698. AVife, i., 294. SCOTS LAW — IRREGULAR MARRIAGES. 191. reference to the oath of the defender is competent ; reference will be allowed if the interests of a wife, whom the defender has regu- larly married since the alleged marriage per verba de pmscnti, are concerned {x). The Court must, of course, be satisfied that the consent was real (//). II. Marriage by Promise, Subseqiiente Copula. — A promise of mar- riage — the true sponsalia, or the sponsalia de faturo of the canon law — may, while things remain entire, be resiled from at any time, though the party guilty of a breach of promise without any adequate cause, may be liable in damages {z). If, however, the promise be followed by cojnda it is, with an exception to be noticed, converted into an actual marriage, in con- sequence of the presumption arising from the fact of a consent to present marriage having then been interposed. The marriage being complete in this way necessarily invalidates any other with third parties (a). It has been held that in order to establish a marriage in this way the promise must be i)roved by the writ (h) or oath (c) of the party whose promise is founded on. But facts and circumstances, as a long courtship, may be taken into account in construing doubtful expressions {d). Where illicit intercourse has previously occurred between the (x) Longworth i'. Yelvertou (1867), (1867), L. E. 1 Sc. & Div. 220, 226, 227, L. E. 1 Sc. & Div. 220, 226, 227. But the view was expressed tliat reference eeeDysart Peei'age Case (1881), 6 A.C., to oath is no longer competent in at p. 512. actions of declarator. But the Court (y) Maloy v. Macadam (1885), 12 has still a discretion to grant it, though Eettie, 431 ; Imrie v. Imrie (1891), it will be refused if prejudice would 19 Eettie, 185. be caused to third parties : iJysart (z) Ersk. b. i. tit. 6, s. 3 ; Stair's Peerage Case (1881), 6 A. C, at p. 512. Inst, b. ], tit. 4, s. 6, n. ; Hogg v. {d) Smith v. Grierson, June 27th, Gow (1812), May 27th, 1812, E. C. 1755, Mor., p. 12.391 ; Honyman v. (a) Pennycook v. Grinton (1752), Campbell (1831), 2 Dow & CI. 265; December 15th, 1752, Mor., p. 12,677; and cf. Harvie v. Inglis (1837, 1839), Dalrymple v. Dalrymple (1811), 2 15 Shaw, 965, 968; 1 Dunlop, 542; Hagg. C. E. 54 ; 17 Eul. Cas. 10. Lowrie v. Mercer (1840), 2 Dunlop, {b) A writing amounting to an 960 ; Monteith v. Eobb (1844), 6 acknowledgment of a promise is suffi- Dunlop, 938, 943 ; Mackenzie v. cient: Honyman v. Campbell (1831), Stewart (1848), 10 Dunlop, 636; Eoss 2 Dow & CI. 265 ; Longworth v. v. McLeod (1861), 23 Dunlop, 978, Yelverton (1864), 4 Macq. 856. 989, 993 ; Longworth v. Yelverton (c) In Longworth v. Yelverton (1864), 4 Macq. 745. 192 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. parties the applicability of the principle as to a promise cum copula constituting marriage has been much questioned. This distinction seems to be well founded. The promise only raises the jn-esump- tion from the idea that the female would not have submitted to the embraces of an individual whom she had been taught to expect as a husband, except on an immediate consent to hold her as his wife. But where illicit intercourse has previously subsisted the presump- tion is the other y^'ay. In that case the j)romise is prospective ; the intention of continued intercourse immediate. In short, the man promises that at some future period he will make the woman his wife, but in the meantime he calculates on nothing further than a continuance of the illicit connection, a principle which jDrecludes the idea of an immediate consent of marriage attending the concubitiis (e). The promise and the copula must take place in Scotland, or at least in a country where that form of constituting marriage is recognised (/ ). It is still undecided if an action of declarator is necessary to the constitution of marriage suhseqiiente copula (. xix ; Maloy r. Macadam Macneil c. Macgregor (1828), 1 Dow LAWS OF DOMINIONS — COMMON FEATURES. 193 Although cohabitation as man and wife be a proof of marriage, yet even where the parties live avowedly in that relation it is competent to prove that they never intended marriage, but merely assumed that character to save appearances. But the proof of this under such circumstances must be strong, nay, conclusive {k). Cohabitation outside Scotland will not constitute the marriage, although it may be competently founded on, either as corrobora- tive evidence of a ceremony in Scotland or as evidence that a ceremony proved to have taken place in Scotland was truly intended by the parties as a present interchange of matrimonial consent (l). The Marriage Act of 1753 and the present Marriage Act, being confined to England and Wales, the marriage law of the British Colonies is that which either prevailed in England before the passing of the Act in 1753 or which has been established by their own municipal laws (m). Laws of the Dominions. — Full effect is now given in point of form to any British (Colonial) marriage throughout British dominions, as the statutory proviso that such marriage is not to have such validity unless at the time of marriage both parties were competent to contract it according to the law of England, only touches ques- tions of capacity (n). There are certain common features in all these various laws, similar to those of English law, such as the require- ment of previous notice by banns or notice, declaration that no impediment to marriage exists, celebration in a public or registered building, the presence of two witnesses, obtaining consent of parents or guardians, if the parties or one of them is a minor, and denomi- nations being allowed to use their owai ritual for the ceremony. No denomination, however, as in England, has any privileged position in this respect, and in almost all the Colonies the persons performing the ceremony, whether clergymen or civil officers, must be authorised by the authorities for this purpose and registered. The following & CI. 208; Lapsley v. Grierson (1848), 2 8c. & Div. 494. 1 H. L. C. 498 ; Campbell i-. Campbell (/) Dysart Peerage Case (1881), 6 (1867), L. E. 1 Sc. & Div. 182 ; Dysart A. C. 489. Peerage Case (1881), 6 A. C, per Lord (m) See ante, pp. 127, 129. Watson, at p. 539. (») Colonial Marriages Act, 1865 {k) Stair's Inst., b. 1, tit. 4, s. 6, n. (28 & 29 Vict. c. 64). See Steuart v. Eobertson (1875), L. R. M.L. 13 194 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. summai'}' will indicate the chief statutory provisions of the Colonies as to the forms of marriage. Isle of Man. — The statutes are the Marriage Act of 1849, Dissenters' Marriage Acts of 1849, 1885, and 1908, and the Marriage Law Amendment Act of 1895. The hours are now 8 a.m. to 4 p.m. ; if one of the parties at the time of publication of banns is resident in the United Kingdom it is enough that the banns are also published in the church of the place where that person resides, according to the law of the United Kingdom. Channel Islands. — By Ordinances of the Eoyal Court of Jersey (1567), young persons contracting marriage were required to have the consent of their fathers or mothers or guardians, on pain of fine and the marriage being null ; (1658) registers were required to be kept; and (1684 — 5) notice had to be given to the Governor of marriages between inhabitants of the island and foreigners (nn). In Jersey (o) and Guernsey (jj), marriages maybe by (1) banns, but tlie marriage must be within the canonical hours (8 a.m. to 12 noon) ; (2) ordinary licence from the Dean, dispensing with publication of banns only ; (3) special licence from the Dean, authorising the clergyman, to whom it is issued, to celebrate the marriage in or out of canonical hours, and in whatever place in his parish he may think fit ; (4) suj^erintendent registrar's, and, in Guernsey, registrar's certificate : and (5) superintendent regis- trar's, and, in the case of Guernsey, registrar's licence. No civil provision exists for notice of a marriage to be given either in Jersey or in England and Wales by parties residing one in each country, but the due publication of banns is reciprocally received in Jersey and in the United Kingdom, i.e., where one party resides in Jersey and the other in the United Kingdom, the marriage after banns may take place either in the parish church of the party residing in Jersey, or in that of the party residing in the United Kingdom at their option. Where one party resides in England and Wales, and one in Guernsey, the same conditions exist as to notice and banns as in Jersey. In Guernsey tlie law of 1840 acknowledges the validity of {nn) Recueil d'Ordonnances (1852), cil of October 3rd, 18-^0; GOtli Annual i., 24, 186. l^cport (1908) of Eegistrar-Geuoral of (o) Canon Law and Stat. Law of Births, Deaths, and Marriages iu Eng- 1841. land and Wales, pp. 14, 15 [Cd. 3833]. {p) Canon Law, and Order in Coun- LAW OF CANADA. 195 marriages performed by a minister of the Established Church according to the Eiibric, or with the licence or special licence of the Surrogate of the Bishop of Winchester, who is usually the Dean of the island. Special exceptions are made in regard to Quakers and Eoman Catholics. The registrar is authorised to certify civil marriages at the registry office or in licensed places of worship. Dominion of Canada. — By the British North A.merica Act, 1867, the subjects of " Marriage and Divorce " are committed to the exclusive jurisdiction of the Dominion Parliament of Canada, while the Provinces are given authority to legislate exclusively respecting " the solemnisation of marriage in the Provinces " (a). The only Dominion statute in this connection is one imposing penalties on unlawful marriage or procuring of marriage (b). All the Provinces and the North-West Territories have availed themselves of the power and have passed local Marriage Acts, which have been severally consolidated, except in Prince Edward Island (c). In British Columbia and the North-West Territories a civil marriage may be celebrated by a civil official in no way associated with any religious body or organisation. In New Brunswick no marriage can be solemnised by any person who is not registered as required by the Act. In Nova Scotia no civil marriage is allowed. With these exceptions, there is a marked similarity in the Provin- cial Statutes. The consent of parents or guardians is uniformly required for the marriage of minors, although the age-limit varies from eighteen to twenty-one years, and the details are different in different Provinces. In no case is the marriage declared to be invalid for the want of the required consent. The marriage must be by licence or banns in all cases, with local differences as to publication of banns and the procedure for obtaining the licence, for which an affidavit of tlie applicant is always necessary. In the older Provinces there is curative legislation for the protection of marriages solemnised in good faith and followed by cohabitation, (a) Ss. 91, 92. See Lefroy's Legis- Ontario, E. S. O. (1897), c. 162 ; lative Power in Canada, pp. 488—489 ; Nova Scotia, E. S. N. S. (1900), Clement's Canadian Constitution, 2nd c. Ill ; New Brunswick, E. S. N. B. ed., 234; Citizens' Insurance Co. of (1903), c. 76; British Columbia, Canada v. Parsons (1881), 7 App. Cas. E. S. B. C. (1897), c. 129 ; Manitoba, 96, 108. E. S. Man. (1902), c. 105 ; North- ih) E. S. C. (1906), c. 146, ss. 307— West Territories, Con. Ord. N. W. T. 312. (1898), c. 46. (c) The consolidated statutes are 13—2 196 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. and of the rights acquired under them. We may commence a short account of the several statutes by a brief reference to the legislation of the Province of Ontario. Ontario. — The following persons being men and resident in Canada may solemnise marriage in Ontario : duly ordained ministers and clergymen of every religious denomination ; elders, evangelists, and missionaries of the " Disciples of Christ," if duly chosen to solemnise marriage ; duly appointed commissioners or staff-officers of the Salvation Army ; duly appointed elders of the Farringdon Inde- pendent Church ((/). Marriages solemnised according to the rites of Quakers are valid (e). There must be, at least, two adult witnesses, and, except under special circumstances, the celebration may not take place between the hours of 10 p.m. and 6 a.m. (/) ; but it is not necessary that the marriage should be solemnised in a consecrated church or chapel (g). No person shall celebrate the ceremony unless authorised by licence of the Lieutenant-Governor, unless the intention of the two persons to intermarry has been proclaimed by at least one publication of banns (/<)• No licence is to be granted, except on affidavit, or to any person under fourteen years of age, except where proof is given by a medical man that otherwise there will be illegitimate offspring. Before the licence is granted one of the parties must make an affidavit in accordance with the requirements of the Act (i), and stating, inter alia, the age of the deponent, and that the other contracting party is of the full age of eighteen years, or the age of such other party if under eighteen, the condition in life of the parties, whether bachelor, widower, spinster, or widow, and the belief of the deponent 'uhat there is no affinity, consanguinity, or other lawful cause or legal impediment to hinder the marriage. The affidavit shall further state the facts necessary to enable the issuer to judge whether or not the required consent has been given in the case of any party under the age of eighteen years, or whether or not such consent is necessary. The consent of the father or, if the father is dead, of the mother, if living, or of the guardian, if any duly appointed, shall be required before the issue of the licence where (d) E. S. O. (1S97), c. 162, s. 2 ; (.7) Jbvl., s. 22. Ontario, 4 Edw. VII. c. 10, s. 39. {h) Ibid., e. 4. (c) R. S. 0. (1897), c. 162, b. 3. (t) Ibid., s. 17. (/) I hid., 8. 5. LAW OF CANADA. 197 either of the parties, not being a widow or widower, is under the age of eighteen ^-ears, and where required, the written consent shall be verified by oath and annexed to the applicant's affidavit (.;). If both the father and mother are dead and there is no guardian, the issuer may grant the licence on being satisfied as to the facts, as he may also do in case the father or mother, though living, is not a resident of and not within the Province at the time of the application, and the minor is a resident, and has been for the preceding twelve months (k). The curative " provision is as follows (l): "Every marriage heretofore or hereafter solemnised between persons not under a legal disqualification to contract such marriage, shall after three years from the time of the solemnisation thereof, or uj)on the death of either of the parties before the expiry of such time, be deemed a valid marriage so far as respects the civil rights in this Province of the parties or their issue, and in respect of all matters within the jurisdiction of the legislature of Ontario, notwithstanding the clergyman, minister, or other person who solemnised the marriage was not duly authorised to solemnise marriages, and notwith- standing any irregularity or insufficiency in the proclamation of intention to intermarry, or in the issue of the licence or certificate, or notwithstanding the entire absence of either. Provided that the 2")arties after such solemnisation lived together and cohabited as man and wife, and that the validity of the marriage has not before such death or prior to the expiry of the said time been questioned in £iJiy suit or action ; and, provided further, that nothing in this section shall make valid any such marriage in case either of the parties thereto had or has previous to the death of the other and previous to the ' expiration of the said three years contracted matrimony according to law, and in such case the validity of such marriage shall be determined as if this section had not been passed." Nova Scotia. — In Nova Scotia only duly ordained ministers or clergymen, being men and resident in Canada(»0, or male commis- sioners and stalT-officers of the Salvation Army, duly appointed (n), may solemnise marriage, and it must be celebrated in the presence of two witnesses : and provision is made for the issue of certificates and returns by clergymen and issuers of licences. ij) E. S. 0. (1897), c. 162, ss. 15, 18. (m) K. S. N. S. (1900), c. Ill, s. 3. [k) S. 15(3), (4). (») Tbi'l., ?. 12. (0 S. 30. 198 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. Marriage may be by banns or licence (o). The usual affidavit is required upon application for a licence (p), and consent of the father, if living, or, if the father be dead, of the mother, or if both mother and father are dead, of the guardian, if any, shall be obtained where either party, not being a widow or widower, is under the age of twenty-one years (q). If there be no parent or guardian, the licence may be issued without such consent (?•). The Act also pro- vided that every marriage solemnised in Nova Scotia on or before April 19th, 188-4, in good faith, before any clergyman or minister of any religious denomination, in the presence of one or more witnesses, and the parties to which have cohabited, shall be deemed valid, notwithstanding any want of legal authority in such clergy- man or minister, or want of any licence or publication of banns, provided that nothing therein contained shall confirm or render valid any marriage between parties legally incapable of entering into the marriage by reason of consanguinity, affinity, prior marriage, or otherwise (s). New Brunswick. — No person shall solemnise marriage in New Brunswick who is not registered as authorised by statute (t). Christian ministers or teachers, duly ordained ; resident, retired or superannuated Christian ministers or teachers in good standing ; commissioners or staff-officers of the Salvation Army resident within the Province, and Jewish Rabbis, may be registered (u). A registered person solemnising or attempting to solemnise a marriage which must not be celebrated without licence or the publi- cation of banns, and must be celebrated in the presence of two witnesses (r), is liable to penalties (ic), and "no person shall know- ingly solemnise any marriage where either party is under the age of eighteen years, without the consent of the father or guardian " (x). Section 15 confirms all former marriages solemnised before minis- ters, or teachers of religious denominations in the presence of two or more witnesses, and followed by cohabitation upon satisfying con- ditions similar to those contained in the legislation of Nova Scotia. Prince Edward Island. — Clergymen of any sect or denomination of (o) E, S. N. S. (1900), c. Ill, s. 5. (i) E. S. N. B. (1903), c. 76, s. 6. (p) Ibid., 8. 8. {,() Ibid., s. 2. (g) Ibid., s. 11. ()•) Ibid., 8. 10. (r) Ibid., 8. 11 (3). {>r) Ibid., 8. 7. (fl) Ibid., 8. 34. (x) Ibid., 8. 9. LAW OF CANADA. 199 Christians having spiritual charge of a congregation within the island upon securing a certificate to that effect from the Lieutenant- Governor, and " all others " thereto similarly authorised hy the Lieu- tenant-Governor or Commander-in-Chief, may solemnise marriage by licence or the publication of banns in Prince Edward Island, but clergymen of most denominations and male commissioners and staff-officers of the Salvation Army may perform the ceremony without a certificate (y). Persons under twenty-one must have the consent of parents or guardians, but if there is no parent or guardian the person authorised to solemnise the marriage may inquire into the propriety of it and give his consent if he thinks proper (z). Former marriages solemnised by licence or upon publication of banns by any clergyman, or minister of the Gospel, or any justice of the peace, or other lay person are confirmed by the Provincial statute, with the usual exceptions. British Columbia. — Ministers and clergymen of every Church and religious denomination in British Columbia, including Salvation Army officers and registrars appointed by the Lieutenant-Governor in Council, may celebrate a marriage (a). In the event of the parties objecting to, or not desiring marriage by a clergyman or minister of any religious denomination, provision is made for civil marriage on certain conditions (/>), with which marriages of Quakers and Jews, according to their rites and usages, must also comply (c). The usual consent is required for the marriage of any person under twenty-one years (d), and if unduly refused a Judge of the Supreme Court is empowered to declare judicially to that effect, and to allow the marriage (e). Manitoba. — The Marriage Act (/') bears a close resemblance to the legislation of Ontario. Ministers and clergymen of every Church and religious denomination, duly ordained or appointed; elders, &c., of the "Disciples of Christ" ; male commissioners or staff-officers of the Salvation Army, commissioned for the purpose, may solemnise marriage in that Province (g). Marriages may be performed between Quakers according to their rites and usages (/<), and such persons of (?/) 2 Will. IV. c. 14, s. 2 ; 3 Edw. (c) J bid., s. 12. Vli.c.7,s.l. See also 1843, evict. 8; (d) S. 17. 1868, 31 Vict. c. 10 ; 1891, 55 Vict. c. 7. (e) S. 18. (z) 2 Will. IV. c. 14, ss. 3, 7. (/) E. S. Man. (1902), c. 105. (n) E. S. B. C. (1897), c. 129, ss. 4, 6. (g) Se. 3, 25, 27. (b) Ibid., 8. 7. (A) S. 24. 200 THE MARRIAGE CEREMONY BRITISH DOMINIONS, ETC. the Jewish faith as comply with special requirements (i) as to their appointment can also celebrate marriage. The marriage ceremony is not to be performed except upon licence or upon publication of banns (A). An affidavit of the applicant for the licence is necessary (0, and in case either of the parties, not being a widow or a widower, is under the age of twenty-one, it shall state that the con- sent of the person whose consent to the marriage is required by law has been obtained (m). Dispensation from banns may be granted bj' the head of any Church or congregation (n), and registration is provided for (o). The father, if living, or, if dead, the guardian or guardians, or if none, the mother may give the consent (p), but if there be no person having authority to give the consent, it shall be lawful upon oath to that effect to grant the licence without it. The Act confirms all former marriages solemnised by any minister or clergyman of any religious denomination under any licence or certificate, notwithstanding the want of compliance with statutory formalities, and jjrovides that any ceremony of marriage performed by or in the presence of any magistrate or justice of the peace in any case where there was no person duly authorised to solemnise marriage within fifty miles from where the parties resided, in pursuance of which the parties intended to assume, and did thereafter assume towards each other, the position of husband and wife, shall be considered a valid, lawful, and binding marriage (q). North-West Territories. — Marriage may be solemnised by ministers and clergymen of any Church or religious denomination and commissioned staff-officers of the Salvation Army, by banns or licence, and by commissioners appointed for that purpose by the Lieutenant-Governor in Council by licence (r). A subsequent Act (s) follows the model of the British Columbia statute and enacts that civil marriage may be performed by marriage commissioners appointed by the Lieutenant-Governor in Council if desired by the parties, upon their compliance with the require- ments set forth in the Act. Ui^on the like compliance, Quakers or Doukhobortsi may celebrate marriage according to the rites and (i) E. S. Man. (1902), c. 105, s. 2<). {}') 11. S. Man. (1902), c. lOo, s. 17. {k) 8. 4. (5) S. 32. (/) S. 12. (r) Con. Ord. N. W. T. (189S), (m) S. 13. c. 46, s. 2. (n) S. 6. (s) 17 of 1901. (o) Ss. 20— 2;j. LAW OK NEWFOUNDLAND. 20J ceremonies of their own religion or creed (0- The usual consent is required by the Consolidated Ordinance (w), which in some cases may be given by the acknowledged guardian, who may have ^' brought up," or, for three years immediately preceding the intended marriage, supported or protected the minor. Consent may be dispensed with where the minor is a female living apart from her parents or guardians, and over the age of eighteen years (r). Quebec. — The French ordinances already referred to (x), only allowing marriages to be performed by lioman Catholic priests, were in force in Lower Canada ; but after the Colony became British, legislation was passed legalising the celebration of marriages by ministers of other religious denominations (//). Under the present law marriage must be solemnised openly by a competent officer recognised by law (z). There is no civil marriage by a lay officer. Roman Catholic priests, the ministers of all the chief denominations of Protestants, and those of the Jews are authorised to solemnise marriage (a) . When both the parties to a marriage are Eoman Catholics it has been held that the marriage in order to be valid must be solemnised by the proper cure of the parties. Accordingly the marriage of two Eoman Catholics solemnised by a Protestant minister has been declared invalid (h) . The law of Quebec on this point is governed by the Civil Code of Lower Canada (c), and the Code of Civil Procedure (fi). It follows generally the French law as to formalities and consents. Newfoundland. — The statutory law of the Colony of Newfoundland is consolidated in Chapter 133 of the Consolidated Statutes of Newfoundland, ^nd series, 1892. All marriages which may be solemnised in the Colony and Dependencies shall be solemnised by persons in holy orders, or by some resident minister publicly recognised as the pastor or teacher of any congregation having a church or chapel, or by persons employed to discharge the duties {t) 17 of 1901, s. 5. Mignault, Droit Civil Canadien, i., (;/) Con. Ord. N. W. T. (1S98), c. 46, 172. s. 11. {h) Durocher v. Degru (1901), (r) C. 11 of 1903, s. 1. E. J. Q. 20 S. C. 456. {x) Seep. 158. (c) Arts. 57—64. (y) See Bui-ge, 1st ed., i., p. 176. {d) Arts. 1105—1113 ; Act XX. of (z) C. C. of L. C, art. 128. Cousol. Statutes of Lower Canada (a) For complete enumeration, see governs registration. 202 THE MARRIAGE CEREMONY BRITISH DOMINIONS, ETC. of teachers or preachers of rehgion, such teachers or preachers being duly licensed to celebrate marriage b}' the Governor (e). Any person performing a marriage between anj- two persons, either of whom shall be under age, without having first published the banns on three successive Sundays in some church or chapel, or, if no such pul)lication, without causing notice of the marriage to be placarded in some conspicuous place of public resort for three weeks immediately preceding the day appointed, or without having first obtained the consent of the parents or guardians of such person under age, shall be guilty of a misdemeanour (/"). The presence of two witnesses is necessary in all cases (g). When the residence of any woman about to be married shall be distant ten miles from the residence of the nearest clergyman or a licensed teacher or preacher of religion, any magistrate, being first licensed for that purpose by the Governor, may celebrate a marriage between any persons resident in such place ; and if there be no such teacher or preacher so authorised nor any magistrate so licensed within fifteen miles of the woman about to be married, in such case any layman or person duly licensed for such purpose by the Governor may celebrate marriage between any persons resident in such place (h) ; by an amending statute of 1893 (0 the Act is made to apply to the Salvation Army, and any duly appointed commissioner or staff-ofiicer resident in the Colony, and being a man duly commissioned by the Army to solemnise marriage and an attested copy of whose commission has been deposited in the office of the Colonial Secretary shall have authority to solemnise marriage. Registration is provided for by c. 21 of 1890, amended by c. 9 of 1891, c. 28 of Cons. Stat., amended by 55 Yict. c. 12, and No. 9 of 1899. Commonwealth of Australia (k). — Victoria. — Marriages may be cele- brated by (1) ministers of religion whose names are registered with the Government statist, including heads of religious denominations; (2) the Government statist or any registrar of marriages. There is no restriction of hours for marriages by ministers, and for those by (e) Cons. Ord. c. 133, s. 1. (k) See Jaiirual of Comp. Leg., (/) S. 3. 1899 et seq. ; Tail. Tapers as to () 59 Vict. No. 2:5. (u) S. 34. {fj) 60 Vict. No. 13. Ca;) S. 31. (?•) 6 Edw. VII. No. 19, an Act (j/) Ss. 44—51. which provides that marriages are uot (2) R. 2. to bo avoided in cou.sequenco of certain (a) Ss. 35 — 43. WEST INDIES. 205 consent (h), but there is no statutory limit of age of parties at which the registrar can refuse to issue a certificate ; he has a discretionary power to do so if a lawful impediment (such as legal affinity within the table of prohibited degrees in the Anglican Book of Common Prayer, previous union, or want of parents' (resident in the Colony) written consent to minor's marriage) is shown, or if the certificate is forbidden by caveat (e). The parties may marry according to any form they see fit to adopt, with open doors, from 8 a.m. to 4 p.m. (d). Fiji. — The marriage law of Fiji, to which the Ordinance 15 of 1875 applies all English laws of general application, is contained in the Marriage Ordinance, 1892, No. 18. Marriage may be per- formed rehgiously by ministers registered for that purpose or civilly before a registrar, but the latter is not applicable to Fijians or Indians or their descendants. Registration is dealt with by the Registration Ordinance of 1892, No. 16. West Indies. — Jamaica. — The governing statute is the marriage law of 1897 (t^). Marriages may be celebrated by marriage officers who may be superintendent registrars or ministers of religion, with two witnesses ; the hours are 6 a.m. to 8 p.m. ; it must be with open doors and certain words must be used. Marriages in articulo mortis may also be made without notice or banns. The requirements are (1) a superintendent registrar's certificate after notice ; or (2) a marriage officer's certificate of publication of banns ; or (8) a licence from the Governor; or a licence from a justice of the peace,- th& clerk of the resident magistrate's Court, or any person appointed for the purpose by the Governor (/). Provision is also made for the marriage, divorce, and succession of Indian immigrants ; the protector of immigrants may designate husbands and wives among them, and register them as such, and the parties are then deemed to be married, the age for men being fifteen and for women thirteen. Turk's and Caicos Islands. — The marriage law consists of the old Bahamas law, 2 Vict. No. 13 ; the local law 10 of 1878, by which the marriage hours are 8 a.m. to 4 p.m., and the ceremony may be performed by lay readers of the Anglican Church, or presiding elders, deacons, or delegates of any known sect of Christians in (?;) 4Edw. VII. No. 19of 1904, S.19. (^) No. 25 of 1897, amended ia (c) Ss. 21—23. detail by No. 28 of 1905. (d) S. 32. (/) No. 28 of 1905, s. 7. 206 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. the islands ; and registration is provided for by No. 4 of 1862, amending 2 Vict. No. 13 ; and the laws of Jamaica iff). Barbados. — The Marriage Act, 1891 (f/), governs, and registration is provided for by that Act, and No. 19 of 1891. Any minister of the Christian religion may publish banns and marry ; licences are granted by the Governor or other civil officers ; there is civil marriage by police magistrates, and a prescribed form of words must be followed for the marriage of non- Anglicans. The marriage hours are 8 a.m. to 9 p.m. with open doors. Trinidad and Tobago (united in 1888). — The marriage laws are the Marriage Order in Council of September 7th, 1838, replaced by Ordinances Nos. 11 of 1868, 13 of 1865, and 17 of 1893 ; and for registration Nos. 13 of 1847 and 12 of 1889, making the register proof of marriage. Ministers of registered places of worship may marry on certificate or licence from the Governor, and the hours are 7 a.m. to 5 p.m. Special provision is made for the marriage and divorce of Indian immigrants by No. 23 of 1891. British Guiana.— The law on this subject is now consolidated in the Marriage Ordinance of 1901, No. 25, and No. 29 of 1902, which last allows of marriages in articulo mortis, with similar provisions to the foregoing legislation. Specified words must be used in the ceremony where the Anglican service is not used. The hours are 6 a.m. to 9 p.m. for religious marriages, and for civil marriages 10 a.m. to 4 p.m. No proceedings lie to compel marriage by reason of any breach of promise or seduction, but this provision does not affect actions for damages for breach of promise or seduction (A). No. 36 of 1903 gives effect to the Foreign Marriage Act, 1892, for marriages of British subjects outside British Guiana. Provision is made for the marriage of heathen immigrants into the Colony by the Immigration Ordinance of 1891, No. 18, part ix. British Honduras. — The governing statute is the Marriage Ordi- nance, 1889 (No. 18), amended by Nos. 27 of 1892, 18 of 1900, and 10 of 1907. Marriages may be performed in public and by ministers of religion registered with the Governor or by district magistrates ; specified words must be used for the ceremony and a (//■) Jjaws of Turk's and Caicos licences in the case of minors anil Islands (1908). majors by No. 1 of 1905. iy) No. 15 of 1891, amended as to (/() No. 25 of 1901, s. 66. the conditions of the grant of marriage WEST INDIES. 207 declaration on oath is required that there are no impediments to the marriage, and consents are required for the marriage of minors. A defect in the dechiration will not avoid the marriage, and no marriage performed by a person registered is avoided by the fact of such person not being a minister of religion, but every person so registered is deemed conclusively to be competent to perform the marriage. The marriage hours are 8 a.m. to 7 p.m., except by special licence. No. 14 of 1903 gives effect to the Foreign Marriage Act, 1892, and its Order in Council. Eegistration is dealt with by No. 27 of 1892. Grenada. — The law is contained in the Marriage Ordinance of 1900, No. 12, with an amending Act, No. 18 of 1901, repealing Nos. 12 of 1841 and 79 of 1865 (registration), as to registration, the effect of which is similar to the foregoing legislations. Marriage requires the authority of a registrar's certificate, or marriage officer's certificate (i.e., banns), or licence, except in the case where persons have been living in concubinage and one of them is in articulo mortis. Persons under twenty-one (except widowers and widows) cannot marry without consent of the father or guardian. No. 8 of 1903 gives effect to the Foreign Marriage Act, 1892. St. Lucia. — The subject is dealt with by the Civil Code (1879), Book II. and Book V., c. 2, and the Civil Status Ordinance, No. 15 of 1879. By a French Ordinance of March, 1685, art. 10, the rites enjoined by the Ordinance of Blois and the Declaration of 1639 were extended to St. Lucia (i). Bermuda. — The principal Act is the Marriage Act, 1905 (k). Marriages may be celebrated (/) by any incumbent (a term extended by the Marriage Act, 1906 (m), to military chaplains or licensed ministers) after the publication of banns (?i) or the grant of licences (o). Provision is made for the registration of marriages (p). Bahamas. — The principal Act is now the Marriage Act, 1908 (q). {{) See a7ite, p. 158, and Burge, (71) No. 27 of 1905, 8S. 4—9. 1st ed., i., p. 176. (0) Ss. 10—16. {k) No. 27 of 1905. {p) S. 26. (?) S. 2. (2) 7 & 8 Edw. VII. c. 4. (m) No. 16 of 1906, s. 1. 208 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. Marriages may be celebrated by ministers of the Christian religion licensed by the Governor, registrars of marriages, and other persons entitled to appointment as marriage officers (/•)• Marriage is solem- nised on the authority either of the registrar's or marriage officer's certificate, or the Governor's licence (s). The hours for marriages, other than by special licence, are from 6 a.m. to 8 p.m. (t). Pro- vision is made for the registration of marriages (?/) and for marriage in articulo mortis, to which special provisions apply (r). St. Vincent— The chief statutes are No. 40 (1841) and No. 373 (1873), allowing any Christian minister to marry, and the hours are 8 a.m. to 12 a.m. Registration is provided for by this Act, by No. 283 (1868), and by No. 26 of 1897. Leeward Islands (embracing Antigua, St. Kitts, Nevis, Dominica, Montserrat, and Virgin Islands, which, however, all legislate separately). — By No. 5 of 1882 the marriage hours by Christian ministers are fixed at from 8 a.m. to 8 p.m. Antigua. — By No. 89 of 1844, banns are to be published in any place of worship licensed by the Governor, and on certificate of publication the officiating minister can marry the parties between 8 a.m. and 12 a.m. ; as also after licence. No. 161 (1860, s. 31), imposes a penalty on a clergyman marrying otherwise. "Where the ceremony is not Anglican a prescribed form of words must be used, similarly to Jamaica and Trinidad. In St. Kitts and Anguilla (joined together for legislative purposes in 1885, but retaining their old laws)(x-) the marriage law is con- tained in No. 63 (1845) to prevent clandestine marriages, and regis- tration of marriages is legislated for (No. 2 of 1885) ; and marriages by Moravian and Wesleyan ministers were allowed b}^ No. 57 (1843). The marriage hours are 8 a.m. to 12 a.m. In Nevis No. 39 of 4 Yict. (1840) regulates the marriage of Dissenters from the Anglican Church. Dominica. — By 35 of 1882 marriages celebrated by justices of the peace when no Protestant clergyman can be found are good, and registration is dealt with by Acts of 1860, Nos. 2 and 3, repealed by Act 69 of 1868 and 6 of 1874. (?) 7 *: N K.lw. VII. c. 4, ss. 6, 7. (c) S. 31. (a) Ss. 16— H». {x) Statutes of St. Kitts and An guilla (t) Sh. 2:3—2-4. (1857). See Burge, vol. i., 258. («) S. 27. MEDITERRANEAN, MALTA AND GOZO. 20'i Montserrat. — The celebration and the registration of marriages are dealt with by Ordinance No. 1 of 1904. Virgin Islands. — No special statutory provision seems to be made on the subject. Falkland Islands and South Georgia. — The marriage law is now contained in the Marriage Ordinance, 1902, No. 8. There are three registered buildings : Christ Church Cathedral, the Roman Catholic Church, and the Baptist Tabernacle ; and the marriage hours are 8 a.m. to 8 p.m. Saint Helena. — By No. 1 of 1868, English law, so far as applicable and not excluded by local Ordinances, governs. Mediterranean. — Gibraltar. — No. 1 of 1861 is the chief statute, allowing civil and religious marriages, and by 7 of 1902 a foreigner to marry there must produce a certificate from his authorities of his capacity. Malta and Gozo. — Marriages in Malta and Gozo are celebrated as follows : (1) In the Roman Catholic Church in accordance with the decrees of the Council of Trent, in the presence of a Roman Catholic clergyman and two witnesses, after publication of bamis (as a rule) ; (2) in the Anglican Church in accordance with the law of England, in the presence of the clergyman and two witnesses, after publi- cation of banns or by licence ; (3) in the Scotch and Wesleyan communions, in the presence of the minister and two witnesses, after publication of banns or by licence. Licences are granted b}^ the Governor on production of an affidavit declaring that there is no legal impediment to the marriage {y). In 1896 the Judicial Committee, on a reference to them of the question of law, reported, and an Order in Council of August 13th, 1895 {z), has declared : (1) That unmixed marriages celebrated in Malta by English clergymen and by Presbyterian and Wesleyan ministers are valid ; the Anglican marriages being fully sanctioned by inveterate usage, and the grounds on which the validity of Presbyterian and Wesleyan marriages was maintained, though not so clear, being sufficient ; (2) that mixed marriages celebrated in Malta by ministers other than those of the Roman Catholic Church are valid. On this last point, however, the Judicial Committee intimated that the question was one of great difficulty, and that, notwithstanding the elaborate character of the argument addressed Uj) Guide to the Laws and Regs. (2) Pari. Pap., 1896, c. 7982. of Malta, 1907. M.L. 11 210 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. to them, it was possible that, in the event of the question coming before them judicially, additional information and authorities might be produced tending to shake the conclusion derived from the materials before them. They suggested that, in the case of persons contracting in good faith, but in such circumstances that the validity of the marriage might be open to question, the matter should be set at rest by legislative declaration. Cyprus. — The marriage of British subjects in Cyprus is regulated ])y Ordinance 2 of 1889. Eastern Possessions. — Ceylon. — The Ordinance 19 of 1907 consoli- tlates the law of all marriages other than Kandyan or Muhammadan ones. The age is for men sixteen, for Burgher or European women fourteen, and other women twelve years (a). The modes of solem- nisation of marriage are either by a minister in a registered place of worship or other authorised place (h) between the hours of 6 a.m. and ■6 p.m. (c), or by a registrar in his ofl&ce, station, or other authorised place (d). Special licences may be obtained (e). Registration is required (/), but is not necessary to the validity of a marriage (<7). No suit lies to compel marriage by reason of any promise or contract, or of the seduction of any female (h) ; no such promise or seduction vitiates any marriage duly solemnised and registered under the Ordinance (t). An action of damages lies, however, for breach of promise or seduction; but in the former case only where there has been a promise in writing ( j). The celebration (1) of Kandyan marriages is governed by Ordinance 3 of 1870, as amended by No. 9 of 1870 and No. 13 of 1905 (A) ; and (2) of Muhammadan marriages by Ordinance 8 of 1886, as amended by No. 2 of 1888. Straits Settlements. — The Christian Marriage Ordinance, 1898, No. 3, superseding the Indian Marriage Act, 1865, which governed the colony while under the Government of India, and its supplementary Act of 1880 allows marriage to be performed by : (1) Persons episcopally ordained for marriage according to rites of the Church of England ; (2) clergymen of the Church of Scotland ; (3) ministers of the English Presbyterian Church ; (4) any minister of religion licensed under the Ordinance to marry ; (5) before a (a) S. 16. {(j) See Pereira, Laws of Ceylon, ii., {b) S. 32. 112, 113. (c) S. 33 (1). (/i) S. 21 (1) of No. 19 of 1907. (d) Se. 32, 34. (i) S. 21 (2). (e) S. 36. (;•) S. 21 (3). (/) See ee. 33 (2), 34 (5), .36 (3). {k) S. 9. EASTEHN POSSESSIONS— AFRICA. 211 marriage registrar, appointed under the Ordinance, for their respec- tive forms of ceremony. The hom-s are 6 a.m. to 7 p.m., except by special Hcence. Ministers of religion celebrating marriage have to keep register books and send duplicates to the marriage registrar. Federated Malay States. — In Negri Sembilan the celebration of Christian marriage is dealt with in Ordinance 4 of 1902, and Muham- madan marriages in Ordinance 5 of 1900 (Z). The corresponding Ordinances for the other States are these : For Pahang, Nos. 7 of 1902 (Christian Marriage), 13 of 1900 (Muhammadan Marriage); for Perak, Nos. 3 of 1902 (Christian Marriage), 2 of 1900 (Muham- madan Marriage) ; and for Selangor, Nos. 7 of 1902 (Christian Marriage), and 8 of 1900 (Muhammadan Marriage). Hong-Kong. — The celebration of marriage is regulated by Ordi- nance 7 of 1875. Marriages may be celebrated either in a place of worship before a competent minister of the body to which it belongs between the hours of 6 a.m. and 6 p.m. (except in case of a special licence) (w) on production of the Eegistrar-General's certificate or the Governor's special licence (n), or before the Eegistrar-General between 10 a.m. and 4 p.m. (o), or by the Governor's special licence at some other place (p). Provision is made for the registration of marriages () S. 22. for breach of betrothal (s. 8) ; and cf. ('. Dlamiiu (1903). (0 S. 2. Transvaal High Court lU'p., i., 'loH. (k) Orange Kiver Colony Statutes, WEST AND EAST AFRICA. 213 June 26th, 1888, and November 29th, 1889, September 3rd, 1886, and December 2nd, 1892 (registration), Mauritius. — The law is contained in Ordinance 26 of 1890 (z), the provisions of which are generally analogous to those of the Code Civil, prior to the law of June 21st, 1907. Seychelles. — Ordinance 4 of 1893 makes similar provision. West Africa. — Gambia (a). — The statute is No. 9 of 1862, and regis- tration is dealt with by No. 11 of 1886, consolidating No. 5 of 1883, and No. 8 of 1845. Ordinance 10 of 1905 provides for the validity of the marriages between Muhammadan natives duly contracted in accordance with Muhammadan law, and for the establishment of a Muhammadan Court at Bathurst. Gold Coast {b). — No. 14 of 1884 embodies the general law. No. 21 of 1907 makes provision for the registration of Muhammadan marriages. Sierra Leone. — Ordinance 22 of 1906 consolidates the law as to the celebration and registration of Christian marriages both in the Colony and in the Protectorate of Sierra Leone. Marriage is by banns or licence, unless one party is a native, in which case it can only take place after publication of banns (c). The hours of cele- bration in a place of worship are between 8 a.m. and 3 p.m. (d)- Marriage is not enforceable because of a promise to marry, but damages may be claimed for breach of promise of marriage or seduction (c). Ordinance 20 of 1905 recognises the validity of marriages between Muhammadans, which are valid according to Muhammadan law, and provides that proof according to Muham- madan law of such marriages shall be received in evidence by all Courts in the Colon3^ Southern Nigeria. — No. 14 of 1884, as amended by Proclamation 10 of 1906 (t'f'). African Protectorates. — The law of marriage in the British Protec- torates in Africa has been placed on a uniform basis by Ordinances framed in similar terms following the provisions of English law. East Africa Protectorate. — Ordinance 30 of 1902 regulates the celebration and registration of marriages. This Ordinance applies to (z) Ss. 46 et seq. ; ss. 89—91 deal (c) S. 2. with the marriages of immigrants. {d) S. 8. («) Ordinances of the Gamhia, 1900, (e) S. 28. 1902, i., 455. (ee) Si)eed's Laws of Southern (?;) Grriffiths's Gold Coast Ordinances, Nigeria (1908), ii. 1051. 1903, i., 434. 214 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. native Christians, who may, however, if they choose, marry with the formahties preliminary to marriage, which are estabhshed, usual or customary, for native Christians in the denomination to which the parties belong (/). No. 13 of 1906 provides for the registration of Muhammadan marriages. A proclamation of December 2nd, 1907, made in virtue of art. 26 of Ordinance 13 of 1906, has extended the provisions of that enactment to all native Muhammadans in the mainland dominions of the Sultan of Zanzibar and the Sultanate of "Witu. The governing laws for the other territories are as follows : — Somaliland. — Eegulation No. 3 of 1902. Uganda. — Nos. 5 and 11 of 1902 ; for native marriages there Nos. 14 of 1903, and 6 of 1906 ; and for Muhammadan marriages, No. 7 of 1906. British Central Africa.— No. 3 of 1902. Southern Rhodesia. — Orders in Council, June 10th, 1891, October 3rd, 1895, and July 14th, 1899, and proclamations thereunder ; espe- cially that of August 14th, 1899, by which magistrates act as marriage officers. In all of these the marriage hours are 8 a.m. to 6 p.m. The Sudan. — The Non-Muhammadan Marriage Ordinance, 5 of 1906. Law of India. — It had for many years been the custom at Madras, in the case of marriages between Europeans, to require and obtain the previous permission of the Governor, signified in writing to the officiating clergyman of the settlement, and this custom had been strictly adhered to. Two British subjects, Protes- tants, resident there, having failed in their application to the Governor of that settlement for his licence, were married without such licence, by a Portuguese Eoman Catholic priest, and the marriage ceremony between the parties was read and performed according to the Pioman Catholic form. It was held that this marriage, followed by cohabitation, was valid (g). Until 1851, there was no Indian legislation on the subject, except a statute (//), which validated marriages by ordained ministers of the Church of Scotland. In 1851, statute 14 & 15 Vict. c. 40, provided a procedure for Christian marriages, and that statute was supjile- mented in 1852 by an Act of the Indian Legislature (i). There was, in 1865, another Marriage Act (A), which (with the previous (/) No. {) of 1904, ss. 3, 4. (1808), 10 East, 282. (.'/) Laiitour v. Tecsdale (181(5), (/*) 58 Geo. III. c. 84. 8 Taunt. 830; S. 0. 2 Marsh. 243; (0 Indian Act V. of 1852. cf. Hex /'. Iiiliabitant« of Brampton (/,) Indian Act Y. of 1805. LAW OF INDIA— CHRISTIAN MARRIAGES. 215 enactments) was repealed by Indian Act XV. of 1872, which contains the present law on the subject. Christian Marriages in India. — The solemnisation in India of the marriagesof persons professing the Christian religion is now governed by the Indian Christian Marriage Act, 1872 (/). The Act provides that such marriages ma}' be solemnised in India (a) by: (a) Any person who has received episcopal ordination, if the rites and cere- monies prescribed by his Church are observed ; (b) by any minister of the Church of Scotland, under the same condition (h) ; (c) by any minister of religion licensed under the Act for the purpose : (d) bj', or in the presence of, a marriage registrar appointed under the Act ; (e) by any person licensed under the Act to grant certificates of marriage between native Christians (c). Marriages may be celebrated by the Anglican and Roman Catholic clergy in virtue of special or, in the case of the latter, general or special licences {d) at any hour. Apart from these exceptions, marriages are to be solem- nised between 6 a.m. and 7 p.m. (e). No Anglican clergyman is to celebrate a marriage in any place other than a church, unless there is no church within five miles distance, or he has received from his Bishop, or the Commissary, a special licence authorising him to do so(/). Marriages solemnised by licensed ministers of religion, or by or in the presence of marriage registrars, have to be preceded by notice duly published (g). Marriages between native Christians may be certified by persons licensed for the purpose, without any pre- liminary notice, if the following conditions are fulfilled : (a) The age of the man exceeds sixteen and that of the woman thirteen ; (b) neither has a wife or husband still living ; (c) the parties take each other as husband and wife by a declaration in the presence of the licensed person, and two other credible witnesses, consent of the father, if living, or if the father be dead, the guardian of the person, and in case there be no such guardian, then the mother, being required when either party has not completed his or her eighteenth (/) Act XV. of 1872. c. Si), to validate them. See Burge, (a) S. 5. 1st ed., i., p. 160. (h) Doubts were formerly raised as (c) See ss. 60 et seq. to the validity of such marriages, (d) S. 10. Scotch ministers not having received (e) Ibid. episcopal ordination, and it was found (/) S. 11. necessary to pass an Act (58 Geo. III. {g) Ss. 12, 38. 216 THE MARRIAGE CEREMONY BRITISH DOMINIONS, ETC. year, unless it ai)pears that there is no person living authorised to give such consent {Ji). Hindu Marriages. — There are two orthodox forms of marriage known to modern Hindu law, the Bralima and the Asura. The former w'as peculiar to Brahmins, but is now in use among all classes (0- In the latter a payment of money or other considera- tion is given for the bride (A). The forms of marriage and the ceremonies vary considerably in different localities. The details of the orthodox ceremony are to be found in A. T. Colebrooke's third essay on the religious ceremonies of the Hindus. The important portions of the ceremony are the giving of the bride to the bride- groom, and what is called the Saptapadi, which completes the ceremony, and makes it irrevocable. This portion of the ceremony is described as follows : " The bridegroom takes the bride's hand, she steps on a stone. The bridegroom recites a fixed text. A hymn is chanted. The bride and bridegroom walk round the fire. The bride is conducted by the bridegroom and directed by him to step succes- sively into seven circles, a text being recited at each step." On the completion of the last step, the actual marriage has taken place, and, in the absence of any caste, or district custom requiring other ceremonies, " the marriage is complete, even though never follow^ed by consummation, and though, in consequence of the conversion to Christianity of one party, the other renounces the obligations of marriage "(0- As to registration of a Sambandham, a form of marriage amongst certain Hindus in Malabar, see the Malabar Marriage Act, 1896 (No. 4) {m). Muhammadan Marriages. — A Muhammadan marriage is a purel}' civil contract ; no religious ceremony is necessary ; there must be an exchange of offer and acceptance respectively by the parties, in each other's presence and hearing, and(n) according to the Sunnis, in (h) ^. GO. {n) Unless this is a rule, not of (i) Jaikisondas Oopaldas v. Harki- substantive law, but of evidence, in sondas llullocliaudas (1876), I. L. E. which case it would be superseded by 2 Bom., at p. 17. the Indian Evidence Act, 1872 (Act I. {k) Asiatic Researches, vii., p. 288. of 1872), s. 118, abolishing any dis- (/) Mayne, 7th ed., p. 118; qualification for giving testimony on Administrator-General of Madras v. the ground of sex or religion, and Anandachari (188()), I. L. E. 9 Mad. s. 134, according to which " no par- 466; Madras Act IV. of 1896. ticular number of witnesses shall in (to) Madras Act IV. of 1896; Journal any case be required for the proof of of Comp. Leg., 1896, i., p. 146. any fact." In Sir K. K Wilson's LAW OF UNITED STATE.S. 217 the presence and hearing of two male, or one male and two female, witnesses, being sane and adult Miihammadans, the whole transac- tion being completed at a single meeting (o). The Shiahs do not require witnesses (jj). Marriage may be contracted through the agency of one or more persons acting for the bride and bridegroom, or for their guardians {q), and unauthorised agency may be subse- quently ratified (r). Continuous cohabitation and acknowledgment of marriage are byMuhammadan law presumptive evidence that all the required formalities have been observed (s). Other Marriages. — The statutory provisions for Parsi marriages and marriages of certain Hindus in the Madras Presidency have been already referred to ; and Act HI. of 1872 provides a form of marriage by a registrar's certificate for persons who are neither Christians, Jews, Hindus, Muhammadans, Buddhists, Sikhs or Jains. Law of United States. — In the United States of America the intervention of a clergyman is not an essential part of the marriage contract (t). United States (»). — Licences. — In the United States a judicial or administrative licence is generally required as a preliminary to marriage — e.g., in Alabama, Arizona, Arkansas, California (a:), Connecticut, District of Columbia, Indiana (y), Kansas, Kentucky, Massachusetts, Missouri, New York(z), North Carolina, Pennsyl- vania, South Dakota, Texas, and Washington. In Mississippi the issue of a licence is essential to the validity of a marriage (a). In New York, though prescribed under penalty, the failure to procure a licence does not invalidate the marriage (b). There is no pro- vision for the issue of licences in Alaska, Idaho, New Mexico, or South Carolina. In Louisiana, before a licence is issued, the view, the rule is one of substantive S Moo. Iiid. App. 13(j. law : Digest, s. 2-i, n. (0 2 Kent's Com., p. 87. {<>) Wilson's Digest, s. 24 ; Baillie's {u) See Pari. Eep. No. 2 (1903), Cd. Digest, i., p. 6. 1468, and the Year Books of Legisla- (^j) Baillie's Digest, ii., p. 4. tion from 1903 onwards. (q) Wilson's Digest, s.27, where the {:>■) Unmarried persons, not minors, special rules applicable to such agency who have been cohabiting as man and are stated. wife, may be married by any clergy- (r) Ibid., s. 28. man without licence. (s) Khajah Hidayut Ooilah c. Eai {y) See laws of 1905, c. 126. Jan Khanum (1844), 3 Moo. Ind. App. (z) Cons. Laws (1909), c. 14, s. 13. 295 ; Mahomed Bauker Hoossain Khan (a) Pari. Eep. of 1903, p. 62. V. Shurfoon Nissa Begum (1860), (i) Cons. Laws (1909), c. U, s. 25. 218 THE MARRIAGE CEREMONY — BRITISH DOMINIONS, ETC. intending husband must give a bond with a surety, proportionate to his means, conditioned that no impediment exists. In Maryland and other States an examination of the appKcant on oath as to the validity of the marriage is required ; and in Maryland a law of 1906, c. 766, requires also a statement on oath as to whether the applicant was ever divorced. There are similar provisions in Tennessee. In New Jersey no licence is required where either party is a resident of the State. In Delaware white persons do not need a licence if their banns have been published on two Sundays in a place of worship immediately after service. "Who may Solemnise.— Generally speaking, marriages may be celebrated by any recognised minister of any religious sect or denomination, or by prescribed judicial or administrative officers. There appears to be no provision on the subject in Maryland, Pennsylvania, and South Carolina. Form. — As a rule no form is prescribed, but two witnesses are required in many States — e.g., Alaska, Kentucky, Michigan, Minne- sota, Montana, Nebraska, Oregon, Khode Island, Utah, and Washington. In New York, North Carolina, and South Dakota, one witness besides the celebrant is required. In Louisiana there must be three adult witnesses, and an act must be made in duplicate of the celebration, signed by the celebrant, parties, and witnesses. Return and Record. — Throughout the States generally, all persons solemnising marriages are required within prescribed limits of time to make official returns thereof. Such returns are recorded, and are evidence of the fact of marriage. In Alaska no provision is made for returns and records of marriages. But the celebrant of a marriage is required to give to each party a certificate sjiecifying the names and residences of the parties and of at least two of the witnesses. There is a similar provision in California as regards unmarried persons, not minors, who have l)een cohabiting as man and wife, and are married without licence. In that State also, parties claiming to have contracted a marriage of which no record exists, maj' join in a written declaration of marriac:;e, subscribed and attested by at least three witnesses, and acknowledged and recorded like deeds of grant to real property. If either party denies the alleged marriage or refuses to join in the declaration, the other party may proceed in the Superior Court to have the validity of the marriage judicially determined and declared. There are similar provisions in Montana. CHAPTER IV. NULLITY OF MARRIAGE IMPEDIMENTS. Void and Voidable Marriages. — There is an important distinction between the Codes of different countries in the manner of treating marriages which have been contracted contrary to law. The illegality may either affect the validity of the contract itself and make it void or voidable ; or merely impose a penalty on the parties or the person j)erforming the marriage ceremony. Such illegalities are generally termed impediments, and distinguished according to the classification {inqyedimenta dirimentia or prohihitiva) adopted by the canon law, which has been already described. In countries such as Spain or Austria and Hungary, persons belonging to the Roman Catholic Church are subject to the rules of the canon law with regard to the necessary conditions of marriage ; while in others, such as Russia or Greece, the rules on this point prescribed by the Orthodox Eastern Church are similarly binding on its adherents and even on persons not belonging to its communion in certain respects, such as the marriage ceremony. The subject of nullity of marriage is here considered under the heads of : (1) the different degrees of nullity, or impediments, which may make the marriage void or voidable only ; (2) the procedure to obtain nullity ; (3) the effect of a decree of nullity, both in the English and American laws and in the foreign Codes. The law of England, which, like that of other European States, generally adopted the provisions of the canon law wdlh regard to marriage (a), recognises diflerent degrees of voidability and different classes of impediments (^). English Law. — As regards the former, a void marriage has been defined as a marriage good for no legal purpose, the invalidity of (a) See Lord Stowell, Proctor v. 534, imssim, and Hammick, c. 1, Proctor (1819), 2 Hagg. C. E. 292, 300, passim. 301 ; Dalrymple r. Dalrymple (1811), (?^) Lord Stowell, Dalrymple r. ibid., 54, 81, 82; Burgess f. Burgess Dalrymple, tibi cit. supra, at p. Go; (1804), 1 Hagg. C. R. 384, 393 ; and Lindo v. Belisario (1795), 1 Hagg. see E. V. Millis (1844), 10 CI. & F. C. E. 216. 220 NLTLLITY OF MARRIAGE. which may l)e maintained in any Court between any parties whether in the lifetime or after the death of the parties to it, whether the question arises directly or collaterally ; a voidable marriage as one in whose constitution there is an imperfection which can only be inquired into during the life of the parties in a proceeding to obtain a sentence declaring it null ; it subsists until it has been set aside by the decree of the proper tribunal, but the effect of the sentence is to render it void ah ijiitio(c). In England, this distinction, which was not known to the earh' common law, became part of it owing to the existence of the sejjarate ecclesiastical and temporal jurisdictions (of which the former was liable to be prohibited by the latter), and the provisions of the statute 32 Hen. YIII. c. 38 (d), which confined the j^ower of the Spiritual Courts to impeaching a marriage for causes within the Levitical degrees or forbidden by God's law ; and the temporal Courts prohibited the Ecclesiastical Courts from declaring marriage void for a canonical impediment after the death of one of the parties, on the ground that this Avould bastardise the issue, though the surviving party could be i^roceeded against in the Ecclesiastical Court criminally, as for incest (e). Scots Law. — It is doubtful if this distinction is recognised in Scots law (/). Law of United States.- — The common law of the United States is the same as that of England ; in both, the canonical disabili- ties, such as prohibited degrees and corporal infirmity, such as imj)otence, make the marriage voidable, not ipso facto void, until sentence of nullity be obtained, and such marriages are esteemed valid to all civil purposes (r/), unless such sentence of ((■) Bishop, Marr. &Div., 258 — 270 ; no reservation or prohibition, God's law Ix. V. Brighton (1861), 1 B. & S. 447; except, should trouble anj' marriage Lord Stowell, Sullivan v. Sullivan without the Levitical degrees, and no (1818), 2 Hagg. Cons. 239, 2513. person should be admitted in an j' of the (d) This Act declared all marriages Sjjiritual Coui-ts within the realm or the between persons not prohibited by King's other landsand dominions toanj God's law from marrying, being process, plea or allegation contrary to contracted and solemnised in the face the Act. of the Church and consummate with (e) Eay v. Sherwood (183(5), 1 Curt, bodilj' knowledge or fruit of children, 193. good notwithstanding any precontract (/) Bishop, s. 269. or precontract of matrimony not con- (//) E.y., legitimacy of children, summato with bodily knowledge which dower, bigamy, husband's right of either of the parties should have made administration, see Goodman's Case before with any other person, and that (1859), 5 Jur. N. S. 902; 28 L. J. IMPEDIMENTS — ENGLAND. 221 nullity is actually declared in the lifetime of the parties (/<). Civil disabilities, such as previous marriage (/), want of age, idioc}', want of consent, made the marriage void. The civil disabilities above mentioned do not dissolve a contract already made, but they render the parties incapable of contracting at all ; they do not put asunder those who are joined together, but they prevent the junction taking place ; and if any persons subject to these legal incapacities come together it is a meretricious and not a matrimonial union, and therefore no sentence of avoidance is necessary {It). In both countries statutes have modified this position ; in England, by Lord Lyndhurst's Act (A), marriage within jDrohibited degrees is made void instead of voidable, thus bringing our law into conformity with the canon of the 4th Lateran Council (1215) ; in the United States similar legislation has been passed (I). Impediments. — England. — Besides the impediments above men- tioned, the following belong to the class of impediments which avoid a marriage : if both parties knowingly and wilfully marry in any other place than a church or public chapel where banns may be published except by special licence, and for a civil marriage if they do so excejjt in a building duly registered for that purpose (m) ; or if they do so without due publication of banns or licence from a person having authority to grant the same (n) ; or if they similarly consent to or acquiesce 745; Philliinore, Eccl. Law, i., 563; L. J. M. C. 97. Rennington v. Cole (1617), Noy, 29; (/.) 5 & 6 Will. IV., o. 54, s. 42. R. V. Jacobs (1826), 1 Moody, 140 ; [1) Bishop, ss. 287 et seq. Elliott V. GuiT (1812), 2 Phillimore, 16 ; (m) 6 & 7 Will. lY. c. 85, s. 42. Bishop, s. 272. (n) Knowledge of both parties is (/t) Sir J. Nicholl, Elliott v. Gurr, requisite in all cases. The words (ibi cit. supra, at p. 19 ; E. r. Wroxton " without due publication of bauns " (1833), 4 B. & Ad. 640 ; 38 E. E.. 341 ; include the use of a false name in 1 Blacks. Com. 439 ; Bankton's Insti- banns, or publication at the wrong tiites, b. 1., tit. 5, s. 51 ; Encyclo. Laws time, or non-publication in thechurches of Engl., tit. Nullity of Marriage, 2nd of the places where the parties are ed. ; Encyclo. Scots Law, tit. Marriage, residing : Marriage Act, 1823, ss. 2, 22 ; viii., 245. Wright v. Elwood (1837), 1 Curt. 669, (/) To constitute the offence of citing other cases ; Midgeley v. Wood bigamy a marriage within prohibited (1862), 4 S. & T. 267; Gompertz v. degrees counts if it is the second Kensit (1872), L. E. 13 Eq. 369; marriage, not if it is the first : E. v. Templeton v. Tyree (1872), L. E. 2 Chadwick (1847), 2 Cox, C. C. 381; P. & D. 422; Phillimore, i., 587. In E. V. Allen (1872), 12 Cox, 193; 41 the case of a licence obtained through 222 NULLITY OF MAKRIAGE. in the solemnisation of such a marriage by any person not in holy orders (o) or if the marriage is not had within three months after the registrar has received notice of application for his certificate for the marriage. On the other hand, such deficiencies as the^ fact that the consent of parents or guardians has not been obtained to the marriage of a minor ( j)) or (perhaps) that the marriage takes place outside lawful hours, or that the marriage takes place in a church where the parties' banns have not been put up are impediments which do not avoid the marriage. In the first of these latter cases, a penalty is imposed on the parties b}'^ their being deprived of any benefit from property accruing by reason of such marriage (jj) and on the priest if he has notice of fraud shown by a false description in and Cottenham, E. v. Millis (1844), 10 the licence, the marriage may be avoided, but an incorrect name is not enough as in banns, " the difference between them being that in banns the proclamation is the material circum- stance to which the Coiu't looks, and it is defective in the way of notice if there is any material variance of name, while in a licence it is the^identity of the per- son," as the Bishop's officer may accept what evidence he likes of notice : Lord Stowell, Ewing v. Wheatley (1814), 2 Ilagg. Cous. E. 175; Cope v. Burt (1809), 1 Hagg. Cons. E. 434 ; Phill. i., 611; and thus it has been held that an omission of one of the wife's names, giving her a false residence, and a false description of the husband's residence and occupation being made wilfully by the hiisband to the know- lodge of the wife, will not avoid the marriage : Clowes v. Jones (1842), 2 N. of C. 1 ; Bevan v. McMahon (1861), 2 S. & T. 230 ; see, too, Dormer v. Williams (1823), 1 Curt. 874; Greaves V. Greaves (1872), L. E. 2 P. & D. 423 ; 41 L. J. P. &M. 66. (o) As to marriage by an unqualified person, guilty knowledge of both parties is similarly essential for avoid- ing tlie uian-iagc : Lord Stowell, Ilawke r. Con-i (1820), 2 Uagg. Cons. E. 280, 288 ; and Lords Campbell, Lyndhurst CI. & F. 784, 860, 906. The Act 51 & 52 Vict. c. 28, legalising marriages performed by a certain unqualified priest does not seem to have been necessary : Phillimore, i., 622. {jj) Canon 100 of 1603, Marriage Act, 1753, s. 11. As already indicated (see p. 127), this was not required by the universal law of Europe before the Eeformation, and the absolute necessitj- of parental consent to the validity of the marriage contract is not of more than positive and civil institution. Nothing belongs to the validity of the contract naturally but the consent of the persons themselves if they are of an age capable of executing the duties of the contract (Lord Stowell, Horner V. Horner (1799), 1 Hagg. Cons. E. 348), while the requisite of consent of guar- dians is only to be found in certain feudal relations : ibid. ; Marriage Act, 1823, ss. 8, 16,17,23; Phill., i., GOO. H there is no person authorised to assent to, or dissent from, a minor's banns, it seems that the marriage cannot be declared null for false and undue publication of banns : Holmes v. Simmons (1868), L. E. 1 P. & I). 523. A false statement by minors that they have obtained such consent subjects them to punishment for perjury, whether it be made in the PROCEDURE JUDGMENT. 223 dissent from the parent or guardian (q) ; while in the others, a penalty is imposed on the priest only (r), but the validity of the marriage is not affected. In a similar spirit, after marriage has taken place by banns or licence, no inquiry is allowed whether the residence alleged by the parties was actual or not (.s). In Scotland, however, the three weeks' residence requisite for an irregular marriage by declaration, acknowledgment or ceremony is a condition the breach of which creates an impedimentum dirimens{t). In Ireland a marriage of a minor under twenty-one without consent of parents, &c., could formerly be annulled by proceedings taken within a, year, but after that time it was unimpeachable. The law on this and other infringements of the marriage law now seems to be the same as that of England ((0. Under the Marriage Act of 1753 want of such consent made the marriage by licence void, but this was altered by the Act of 1823 introduced by Dr. Phillimore {x). Procedure to obtain Nullity. — In England the jurisdiction of the ecclesiastical courts in suits for nullity of marriage is now exercised by the Divorce Division of the High Court of Justice. In such suits the legal presumption is in favour of the validity and against the nullity of the marriage (?/). In England and in Scotland any one with the slightest interest in the marriage, e.g., a father of a spouse, or a spouse can sue for nullity (z). In English law, upon a decree of nullity, the marriage is void uh initio and produces no civil effects, and putative marriages are not admitted {a). Effect of Judgment as to Nullity or Validity of Marriage. — A judg- ment of a matrimonial Court, declaring the status of parties, is a judgment in rem, and as such is binding not only inter jMvtes, hut on statement to the registrar or the (c) Steele v, Braddell (1838), Milw. affidavit for licence : Marriage Act, Eccl. Eep. 1 ; Brook v. Brook (1861), 1823, s. 14 ; 19 & 20 Yict. c. 119, s. 2 ; 9 H. L. C. 193, now altered by later E. V. Chapman (1849), 1 Den. 432; statutes; Marriage Law Commission Phillimore v. Machon (1876), 1 P. D. Eeport ou Irish Law, pp. 11 — 17, and 481; PhilL, i., 612, 616. later Acts. {q) Phill., i., 599, 600; 4 Geo. IV. (a;) Hammick, 15; E. r. Birmingham c. 76, ss. 7, 8. (1828), 2 M. & E. 230. (r) 4 Geo. IV. c. 76, s. 21 ; 49 & 50 {y) Encyc. of English Law, tit. Vict. c. 14, s. 1. Nullity of Marriage, vol. x., 90. (s) Hammick, 193, (z) Sherwood v. Eay (1837), 1 Moo. {t) Lawford v. Davies (1878), 4 P. D. P. C. 353. 61. (a) See Burge, vol ii., pp. 266, 330. 224 NULLITY OF MARRIAGE. strangers also (h). It may, however, be impeached by a stranger, as having been obtained by fraud in the sense of wilful deception practised upon the Court (c). But a sentence which does not deter- mine status has not the effect of a judgment in rem. Thus a verdict in a divorce suit that the wife has committed adultery, followed by the dismissal of the petition on the ground that the jury had found the husband also guilty of adultery, was held not to be conclusive against a plaintiff suing the husband for necessaries supplied to the wife (d), although in such a case, estoppel would have applied between the parties (c). And a decree in a suit for jactitation of marriage is not a judgment in rem, for there the spiritual Court does not intend to affect the status of the parties by its decree, but merely to prevent one party from falsely asserting that a marriage happened under certain specified circumstances (/). Law of the United States. — Suits for Nullity, when, and by whom, Competent.— Suits to annul marriages {g) are expressly legalised by statute in most States when the marriage is voidable or void. As a general rule, the libel to annul may be brought by either party. But in some States {h) a suit for nullity on the ground of non-age cannot be brought by a contracting party who was of age at the time; nor, in others (?'), a suit for nullity on the ground of idiocy or lunacy by the other party, if he or she knew of the incapacity at the date of the marriage ; nor, in Wyoming, for cause of impotence by the party imj)otent ; nor, in Oregon, by the guilty party in cases of force or fraud. Effects of Decree of Nullity or Validity. — A decree of nullity is conclusive on all persons in New Hampshire, IMassachusetts, Michigan, and Wyoming ; only on the parties to the action and those claiming under them in California, New York, and Vermont. In Vermont and New York, if pronounced during the lifetime of the parties, it is conclusive in all Courts and proceedings. The parties (/>) Meddowcroft r. Hugueniu (1844), (/') Duchess of Kingston's Case, and 4 Moo. P. C. 386 ; Perry v. Meddow- notes thereto in 2 Sm. L. C, p. 731. croft (1846), 10 Beav. 122. {) Art. 187. (y) Art. 185. (r) Art. ISS. (a) Art. 186. AUSTRIA — ^HUNGAKY — GERMANY. 229 having a present vested interest in the (][uestion, as also l)y the Ministere Public {d). (iv.) Eelationsliip within the prohibited degrees (e). Austria. — The following impediments (under the Code of 1804) render a marriage void : — (1) Weakness of mind and incapacity, including age undei fourteen years (/'). (2) Restricted capacity, owing to minority or for other reasons, unless the consent of the lawful father or the Guardianship Court is obtained (//). (3) Impotence (/()• (4) Existing marriage (i). (5) Higher orders and solemn vows (A). (6) Difference of religion (Z). (7) Blood relationship and affinity as defined above (/^O- (8) Adultery with a spouse whom the offender desires to marry on condition that tbis act is proved before the marriage is contracted (u). (9) Murder of a spouse (o). (10) Criminal participation in the dissolution of a marriage (jj>). (11) Mistake as to the person (q). (1'2) Reasonable fear, especially in case of abduction (r). (13) Complete omission of the forms prescribed for contracting marriage {rr). All these render the marriage void ah initio. In the case of Nos. 4, 5, 6, 7, 8, 9, 10, 12, and 13, the validity of the marriage is to be investigated on the demand of the official authority ; in all other eases it is only to be investigated on the demand of the aggrieved party (s). Hungarian Law. — The Hungarian marriage law makes similar distinctions between non-existent, void, and voidable marriages, on similar grounds to those of the German Code, though there are many differences in details, especially as to proceedings to obtain nullity. German Civil Code. — Under the German Civil Code, as mentioned above (t), failure to observe the proper form makes the marriage void in the English sense of the word (with the exception stated {(l) Art. 191. (m) Ss. (id, 6G, 125. (e) Baudry-Lacan., ii., p. 400, («) S. G7. s. 1841. (o) S. G8. (/) Civil Code, s. 48. (ij) S. 119. {g) Ss. 49—53. ('i) Ss. 57—59. (A) S. 60. (r) Ss. 55— GG. (i) S. 62. [rr) S. 75. {k) S. 63. . (s) S. 94. {I) S. 64. (0 Ss. 1317, 1324. JJ80 XrLUTV OK MAKKIU^K. above), but marii;\^^j' aio void:\blo \,Hichtii^\ in iho t'ollowing cases: — ^^a) InoaivKriiy, unle*^ iht?.r^ is sulvsequent nuit\ea- tion (»i) ; (b) bi^gamy(*) ; (©) prohibiteil degrws of relationship {jii) j artie« have l>een pn>hilviteti in the divorce decree from re-marria^ subject io the possihih'ty of disj>ens5Vliou {i)i. The nullity of a marria^ void on iluso grounds cannot be allep^l in any legal proceeding unless it has Kvn previously e^tablislied by a decree of nullity in a si>ecial action brought in the proj>er C\nirt> vrhich is generally tlie C<>urt of the district where the husband has his domicil. The same rule holds good of a marriage null for wivut of proper form if it has been entered in the register of marriages (a). Marriages are also voidable in German law on the following grounds and on the appUcation of the following parties (b) : (a) Kestxicted cai^acity, the required consent not having l>een oblaiuetl, on the application of the spouse who was of such restricleil capacity at the date of the marriage (c) ; (b) al>seuee of consent, on the appli- cation of the spouse whose consent was absent (d) ; (c) mistake as to the essential qualities of the other spouse, on the application of the i>erson who was under mistake {•c) ; (d) fraudulent mis- representation, on the application of the decei\*ed s^nouse (/) ; (e) coercion, on the application of tlie coerced spouse {(^) ; ss. 1330. 1340. (f) S. l.v>.>. ^^v} S. Ki^H). (/) S. 1334. Siiuihrly iu French OKPvMA.VY ITALY. 231 necfynd marriage, maintenance mast be supplied to the other sponge, if unaware of the existence of the impediment at the time of the marriage (I). As to the time for bringing nullity proceedings for impediments prhatijuru, the following mles are contained in the German Code : (a) The action cannot be brought after the death of the party against whom the application would be madefm); Cb) the appli- cation cannot be made after the lapse of six months from the dat-^ at which the circumstance justifying the application became known to the party entitled to make it; and in the case of persons of restricted capacity after the lapse of six months from the date at which they acquire full capacity (n). Italian Law. — Under the Italian Code there is the same distinc- tion as in other systems between grounds of nullity on which application maybe made by the Public Procurator, as well as by the interested parties, and others in wPiich only certain specified interested parties can take X)roceedings. In the former class, however, the Public Procurator is precluded from making the application after the death of one of the spouses in any case (o). The first-named grounds are : (a) Want of age (a) ; (b) bigamy (h) ; (c) prohibited degrees of relationship, including adoption (c); (d) certain criminal offences committed against the other spouse (d) ; (e) incompetence of the registrar or absence of the requisite witnesses, but this ground must be taken within a year from the date of the marriage (e) : (f) mental disease where there has been a formal declaration of lunacy (/). The grounds on which applications can only be made by specified persons and within a specified time are the following : (a) Lack of consent by the spouse whose free consent was wanting ; (b) mistake as to the person, by the spouse who was misled (thus difl'ering from the German law, by which this can only be done by the spouse who caused the mistake) (g) ; as regards both (a) and (l) S. I'-jol. the former spouse in tliia case and (m) S. 1338. cases of absence, see art. 113. (n) S. 1339. (c) Arts. 58, 59, 60, 104. () Arts. 83 (3), 101 (1), and p. 110, (a) Art. 101 (3), and p. 103, supra. supra. {/>) Art. 101 (4), and pp. 1(39, 172, iq) Arts. 83 (4), 101 (1), and p. 122, supi-a. supra. {bh) Sec pp. 99, 103, 104, 116. (r) Arts. 83 (5), 101 (1), and p. 112, (c) Art. 103 ; and see art. 67. supra. BUSSIA — SWITZERLAND. 233 separation of the spouses in every case; (b) the assignment, in certain cases, of a residence to the wife; (c) the custody of the children ; (d) the aUnient of the wife, and of children who are not under the paternal power; (e) preventing a husband, against whom a claim is brought, from prejudicing his wife as regards the administration of her property (fO- Canonical marriages have already been mentioned (c). Law of Russia. — Marriage may be annulled by the Church authorities also on the following grounds : (1) Impotence of either of the parties if the impotence has arisen previous to the marriage and has lasted not less than three years after the marriage ; (2) deprivation of all civic rights of either party by a Court sentence ; (3) the disappearance of either party for not less than live 3^ears if during that time his whereabouts is unknown; and lastly, if both parties, not having children, have joined religious orders. Switzerland. — The Swiss Code, as above stated, distinguishes, like the other Codes above mentioned, between Xiclitigkeit, or nullite absolue, where the marriage can be avoided by the competent public authority or any other person interested {J), and Aufechtbarkeit, or nullite relative, where action may be brought by one of the spouses or his or her parent or guardian (g). A marriage is absolutely void if (1) either of the spouses is already married ; (2) either of the spouses is insane or incapable of discernment (//) for some permanent reason; (3) the spouses are related within the prohibited degrees by blood or marriage (i). (d) Art. 68. degrees or insanity ; by the parent or (e) See p. 168, ante. guardian in case of a marriage of (/) Arts. 120 — 122. persons under age (but the action (y) Arts. 124 — 128. The present law, may not be received if the spouses have which is contained in arts. 50 — 55 of attained the legal age, if the wife has the Federal Law of Civil Status and become pregnant, or if the parents Marriage, does not make this distinc- or guardian have consented to the tion. Under it a suit for nullity may marriage) ; or in the case of want be brought by one of the spouses on of consent of parents or guardian by the ground of want of consent, caused the person or persons whose consent by duress, fraud or error as to the per- is required, who must bring the action son, provided three months have not before the spouse in question has elapsed since the cessation of the cause attained the age which would render by which the consent was invalidated ; him or her independent of the consent, by a public authority in the case of {h) See art. 16, above, p. 104. bigamy, marriage within the prohibited (i) Ai't. 120. 234 NULLITY OF MARRIAGE. After the dissolution of a marriage no in'oceedings shall be taken by the public authority to invalidate it ; but any other person may still set up its invalidity for the protection of his own interests. After the termination of insanity or incapacity of discernment the marriage can no longer be avoided except by one of the spouses. And a marriage cannot be avoided on the ground of the bigamy of one of the spouses if the other was at the time of its celebration ignorant of the previous marriage, and if the latter has since been determined (k). A marriage may be avoided by one of the spouses on account of : (a) Absence of consent, where he or she was at the time of celebration incapable of discernment from a temporary cause (l) ; (b) defective consent, by reason of mistake either as to the nature of the cere- mony, the personality of the other spouse, or qualities of the other spouse, which are of such importance that in their absence a common life would be intolerable (m) ; (c) deceit as to (1) honour- able character ; (2) disease which would be in a high degree dangerous to the health of the other spouse or of the issue of the marriage (n) ; (d) threats inducing the marriage (o) , An action of nullity on one of these grounds can only be brought within six months after the discovery of the mistake or deceit, or after the effect of the threats has ceased, and is absolutely barred after the lapse of five years from the celebration of the marriage (_/>). The marriage of a person who is incapable of marriage or generally under incapacity or interdicted may be avoided by his or her parents or guardian, but no marriage can be avoided on this ground after the incapacity has ceased or the wife has become pregnant (q). A marriage which ought not to have been celebrated for any of the following reasons is nevertheless valid : (1) That one of the spouses is the adopted parent of the other (/•) ; (2) that a period of waiting imposed by the law or by the Court has not been observed (s) ; (3) that the legal forms have not been observed, (/c) Art. 122. (p) Art. 127. (1) Art. 123. {) See Federal Law of Civil Status land, it does not seem to have been the and Marriage, 1874, art. 55. case in the Province of Gelderland and (7) Inst, de Nuptiis i., 10, 12. the Generaliteitslanden. Echtregle- (?•) Polit. Ordon., April 1st, 1580, ment, art. 83 ; Placaat (Holland) of art. 8 ; J. Voet, Ad Pand. xxiv., 2, 15 ; July 18th, 1674 ; Groot Plac, Bk. III., Fock. Andr., Bijdragen, i., 168 et seq. 507 ; Placaat (Zeeland) of March 18th, (8) Fock. Andr.,Bijdragen,i., 163— 1666; Groot Plac, Bk. IV., 1047; 164; V. d. Keessel, Thes. Sel., Thes. Schrassert, Codex Gelr. Zutf. I. in 63 and 64. voce " Overspel," No. 7; v. d. {t) Polit. Ordon., April 1st, 1580, Keessel, Thes. Sel., Thes. 70 ; Boel- art. 8; J. Voet, Ad Pand. xxiv., 2, Loenius, Decis. en Observ., p. 60; 15; Fock. Andr., Bijdragen, i., 168 Fock. Andr., Bijdragen, i., pp. 180, et seq. 1)^1_ (u) Whether this rule comprised (;,;) S. van Leeuwen, Cens. For. I., every marriage of persons between 1, 15, 10; IIoll. Cons. III. b, Cons, whom there had been an adulterous 344 ; iv. Ai)p. on p. 332 ; J. Cos, intercourse is doubtful. If it were so Eegtsgel. Verb., VII., 5—7 : J. Voet, in the Province of Holland and Zee- Ad Pand. xxiv., 2, 15, 10. ROMAN-DUTCH LAW. 239 condoned, the ground for voidability ceased to exist ; (g) ii free will on the part of either spouse were wanting. The effect of a marriage declared null and void ah initio was that the parties were, as much as possible, placed in the same condition as if no marriage had taken place. Any issue of the marriage (unless putative) were illegitimate (y), and the wife did not change her domicil. A voidable marriage was valid till declared void. Any issue of the wife then pregnant was legitimate, though the father could disclaim it by action, but the wife's domicil was changed. Private International Law. — This is considered with the law of divorce (z). {y) J. V. Sande, Decis. Fris. II., 5, and 65, and authors quoted. 2 ; V. d. Keessel, Thes. Sel., thes. 64 (z) See p. 941. CHAPTER Y. CONSTITUTION OF MARRIAGE — PRIVATE INTERNATIONAL LAW. In the preceding chapters a general outline has been given of the principal circumstances on which the validity of the marriage depends. It will have been seen that the laws which have l)een referred to differ from each other in several important jDarticulars. The judicial tribunals of a country may be called upon to decide upon the validity of a marriage contracted, not in conformity with its- own law, but either with that of the country in which it was cele- brated or with that of the domicil of the parties. Each of these laws has to be considered in such a case for judging of the validity of the marriage. The subject is here treated under the following heads : — (1) The lex loci contractus, as formerly the governing law for the validity of marriage generally. (2) The personal law (sometimes coupled with the lex loci), as now the governing law for capacity for marriage. (3) The various incapacities imposed by the personal law. (4) Whether both parties should he capable according to their- respective personal laws. (5) Impediments imposed by the lex loci celchrationis. (6) Impediments imposed by the lex fori. (7) The lex loci celchrationis generally, and the personal law occasionally, as the law governing the forms of marriage. (8) Exterritorial marriages. (9) Marriages where the local forms cannot l)e used. ]. Former View.— Lex Loci Contractus governed Capacity and Form. — Older Jurists. — The former view, resting on juristic authority, was that the lex loci contractus or celchrationis should be applied to all questions involving the validity of the marriage, whether they respected the capacity to contract or the manner in which the l)arties contract marriage. It will be observed that in the citations following the solemnities of the contract are mainly referred to. FORMER VIEW FAVOURED LEX LOCI CONTRACTUS. 241 This proposition is fully set out in the following passage from the judgment of an English ecclesiastical Judge. "From the infinite mischief and confusion that must necessarily arise to the subjects of all nations with respect to legitimacy, successions, and other rights, if the respective laws of different countries were only to be observed, as to marriages contracted by the subjects of those countries abroad, it has become jus goitiinn, that is, all nations have consented, or must be presumed to consent, for the common benefit and advantage, that such marriages should be good or not, according to the laws of the country where they are made. It is of equal consequence to all that one rule in these cases should be observed by all countries, that is, the law where the contract is made. By observing this law no inconvenience can arise, but infinite mischief will ensue if it is not. If countries do not take notice of the laws of each other wdth respect to marriages, what would be the consequence if two English persons should marry clandestinely in England, and that should not be deemed a marriage in France ? Might not either of them, or both, go into France and marry again ; because by the French law such a marriage is not good? And what would be the confusion in such a case? Or again : Suppose two French subjects, not domiciled here, should clan- destinely marry, and there should be a sentence for the. marriage ; undoubtedly the wife, though French, would be entitled to all the rights of a wife by our law. But if no faith should be given to that sentence in France and the marriage should be declared null, because the man was not domiciled, he might take a second wife in France, and that wife would be entitled to legal rights there and the children would be bastards in one country and legitimate in the other " (a). Sanchez discusses the question whether if the subject of a country in which the decree of the Council of Trent is in force, marries in a country where it is not admitted, he is bound to conform to it. He maintains the negative, because, " In contractibus, solse leges loci in quo contractus celebratur, inspiciuntur : locus autem ubi hoc matrimonium initur, non petit eam parochi et testium solemnitatem ad matrimonii valorem, cum ibi decretum Tridentini non obliget " {b). (a) Scrimshire v. Scrimshire (1752), Divorce, 1891, i., s. 853. 2 Hagg. Cons. Eep. 395, 417, 418 ; Sir {b) Sanchez, lib. 3, disp. 18, n. 28. E. Simpson, approved by Storj', s. 80 a ; See according! j' for marriage of Eoman and in Ogden i: Ogden, [1908] P. 4G, Catholics in Eussia, 1902, J. 470. at p. 63 ; and Bishop, Marriage and M.L. IG 242 CONSTITUTION OB^ MARRIAGE. On the same ground he holds that a person will be bound to con- form to it if it prevail in the place where the marriage is celebrated, although it is not admitted in the country of his domicil. " Ea solemnitas adhibenda est, quam petunt leges loci, ubi contractus initur : cum ergo locus ubi celebratur matrimonium ab his peregrinis exigat solemnitatem Tridentini in eo vigentis, aliter contractum, nullum erit " (c). The language of Huber is equally explicit. He considers that if the marriage be legal in the place where it is contracted and celebrated, "ubique validum erit effectumque habebit " {d). J. Voet says, " Sufficit in contrahendo adhiberi solemnia loci illius, in quo contractus celebratur, etsi non inveniantur observata solemnia, quse in loco domicilii contrahentium, aut rei sitae, actai gerendo preescripta sunt : quo fundament© etiam in banc sententiam duplex responsum extat in Eesponsis Juris. Holl. part 3, vol. i., consil. 181, 184 "(g). Merlin has thus forcibly described the extent to which this principle is carried. " Ainsi, les enfans qu'une femme sauvage aurait eus d'un sauvage, dans un pays ou il n'y aurait point de lois etablies, seraient regardes comme legitimes, meme parmi nous, quand meme le pere et la mere n'auraient suivis d'autres lois que celles qu'ils se seraient imposees : de meme ceux de deux epoux, Anglais ou Chinois, qui auraient accompli les lois de I'empire de Chine ou du royaume d'Angleterre" (/'). Hertius thus lays down the rule : " Matrimonium juxta solemnitates loci alicujus, ubi sponsus et sponsa commorabantur, contractum, non potest praetextu illo rescindi, quod in domicilio aut patria mariti alife solemnitates observentur " (r/). English Law. — The former law of England adopted this principle in its fullest extent. "A marriage good by the laws of one country is held good in all others where the question of its validity may arise "(/<). It admitted the validity of a marriage contracted in (c) Sanchez, lib. 3, disp. 18, u. 2G, p. 49J. cited by Story, s. 122. (r/) 1 Hertius, Opera, Do CoUis. Leg., (cZ) Huber, de Couf. Leg., lib. 1, s. 4,art. 10, p. 126. tit. 3, 8. 8. (//) Lord Brougham, Warrender v. (e) Voet, lib. 23, tit. 2, n. i ; P. Warrender (1835), 2 CI. & l\ 4SS, at Voet, 8. 9, c. 2. p. 530 ; Ryan v. Ryan (181) ; and a similar certificate of capacity has been required by the ecclesiastical authorities for foreigners, desiring to marry here, but who are not domiciled in this country, as a condition of (/<) Hague Convention on Marriage Law, 1902 (ratified June 13tli, 1902, 1902, J. 9-^9), art. 1, English transla- tion in Meili & Kiilin's " Int. Civ. and Commercial Law," 1905, Appendix. See law of Franco (Code Civil, arts. 3 (3) and 170) ; Germany (Introd. Law, art. 13) ; Hungary (Law of 1894, art. 108); Netherlands, art. 138 of Code); Italy (Code Civil, arts. 100, 102); Portugal (Code Civil, arts. 1065, 1066) ; Eoumania (Code Civil, art. 152) ; Spain (Law of June 18th, 1870, art. 141) ; Switzerland (Federal Law of June 25th, 1891, art. 7 c) amend- ment introduced by the Final Title of the Code, art. 61 ; law of Denmark, Sweden and Norway, 1901, J. 197, 1077 ; Siam, 1901, J. 188 ; Institute of International Law (1888, Ann. x., 75) ; Weiss, C. L., iii.,407. (o) Hague Convention, art. 4 ; France (Sirey, Code Civil, art. 14:5) has treaties to this effect with Belgium, Luxemburg and Germany as to Alsace Lorraine (1896, J. 7 14) ; for Hungarians in France (1896, J. 1130, 1897, 441) ; for foreigners in France (Foelix, Deman- geat, ii., 382) ; for Italians in France (1895, J. 693), Germany (1902, J. 924 ; 1893, J. 257), Italy (Code Civil, art. 103, 1892, J. 513). Hungary (Law of 1897, art. 113), Switzerland (Federal law of 1874, ss. 31, 37, replaced by art. 7 e, added to the law of 1891 by art. 61 of the Final Title of the Civil Code ; 1897, J. 738, 743; 1892, J. 1100) has treaties to this effect with Germany (1900, J. 687), with Holland (1900, J. 223), with Italy (1900, J. 215), with France (1877, J. 573) ; so law of Sweden (1883, J. 343, 355), laws of Austria-Hungary and Venezuela (Ann. de Leg. Etr., 1890, 961) ; Bar, Gilles- pie, 348; and Turkey (1903, J. 9.3); and "Parliamentary Eeturn of Mar- riage Ijaws of Foreign Countries," P. P. Misc., 1894. {p) Udny V. Udny (1869), L. E. 1 H. L. Sc. & D. 441 ; Brook v. Brook (1861), 9 H. L. C. 193 ; Dicey, 613 ; Foote (3rd), 73 et seq. 248 CONSTITUTIOX OF MARlilAGE. obtaining a marriage licence in the diocese of London (q). A recent statute (r) has provided for a simihir certificate being obtainable, upon complying with certain conditions (s), by a British subject desiring to be married in a foreign country to a foreigner according to the law of that country, upon giving notice of the marriage if resident in the United Kingdom to a registrar, and if resident abroad to the marriage officer, to the effect that after proper notices have been given, no legal impediment to the marriage has been shown to the registrar or officer to exist, unless the certificate is forbidden or a caveat is in force, or some legal impedi- ment to the marriage is shown to the registrar or officer to exist (t). A similar provision is made in the case of foreigners marrying with British subjects in the United Kingdom, where arrangements have been made by the British authorities with any foreign country for the issue by its officers of certificates that after proper notice no impediment according to the law of that country has been shown to exist to the marriage ; and regulations may be made by Order in Council requiring such a foreigner to give notice that he is subject to the marriage law of that country to the person by or before whom the marriage is to be solemnised, and forbidding any person to whom such notice has been given to solemnise the marriage or allow it to be solemnised until such a certificate is produced to him (u). The Act does not extend to Jewish marriages, and there (7) See 1902, J. 642. marriage has been obtained, or that (?•) 6 Edw. VII. c. 40 (Marriage with there is no such person. Foreigners Act). This Act has not yet (0 Tbe certificate may be forbidden been applied. by any person whose consent is re- (s) The conditions include signing a quired by law to marriages solemi)ised notice stating the name, surname, pro- in England; or a caveat may be fession, condition and nationality and entered against it by any person ; and residence of each of the parties, and the registrar or officer must examine whether each is or is not a minor ; an into the matter of the caveat and oath that tlio applicant believes that decide whether it ought to obstruct there is no impediment to the marriage the giving of the certificate or not, or by reason of kindred or alliance or may refer it to the Eegistrar- General otherwise ; that he has for three weeks to decide ; and if the registrar or immediately preceding had his usual officer decides that the caveat should residence within the registrar's or have effect, the apjilicant for the cer- officer's district ; that if the applicant, tificate may appeal to the Ecgistrar- not being a widower or widow, is under General, twenty-one years of age, the consent («) S. 2, of the ijersons required by law to the PERSONAL LAW GO\'ERNS CAPACITY. 249 are special provisions in its application to Scotland (x). A similar certificate is required by statute in Gibraltar (y). It has been suggested that English law also requires that the parties should have capacity according to the lex loci celebrationis, but this has not been so decided (^). The law of Scotland and the United States continue to regard the question of capacity as deter- mined by the lex loci celebrationis. Kent, after citing decisions upholding the lex doDiicilii and the lex loci celebrationis respectively, concludes that the sounder rule appears to be that a status legally created in one country and not being one generally recognised as contra bonos mores, is to be held valid everywhere for all purposes {a). Recognition of Personal Law. — The personal law, therefore, primarily governs the capacity or incapacity of the parties. On this principle, on the one hand, a foreigner legally divorced in his own country should be regarded as capable of marrying in a country where divorce is unknown (/>). On the other hand, any incapacity imposed by the personal law on a person for marriage (.c) Tlie period of residence is fixed at fifteen days, and tlae notice to tlie registrar must, besides the particulars required by the Marriage Notice (Scotland) Act, 1878, state the nation- ality of the parties, and the public notice of the intended marriage made by the registrar must give similar particulars. The persons to whom the notice of the person's nationality men- tioned above must be given, and who are prohibited from assisting in the celebration of the marriage after receiving such notice and until the certificate is produced to them, in- clude a registrar, law agent, or other person whom he desires to draw up any declaration of irregular marriage between him and a British subject. A certificate is not to be forbidden, and objections take the place of caveats: see s. 5 and sched. (y) Gibraltar, 1902, Ordinance No. 7, " Journal Soc. of Comp. Leg.," N. S., xii., 457. (z) Westlake, 58; Dicey doubts, 627 ; but by the rules of the Institute the provisions of the lex loci as to pro- hibited degrees must be complied with ; and so Mr. Justice Phillimoi'e, Paper on Marriage Law, Int. Law Ass., Glasgow Pieport, p. 232. Bar thinks not unless it is a criminal delict, 349 — 351. (o) 2 Kent, Comm. 93 ; Fraser, Husband and Wife, 1297, 1299; Bishop upholds the lex loci celebrationis (843) and rejects domicil, as " having a grain of truth in it, and when properly understood in most cases harmless " (873), though he adopts the law of domicil for divorce (848, 849). (/') He can in France and Italy, Weiss, C. L., iii., 423, 424, citing Amiens, 1880, J. 298; Rome, 1886, J. 620; Milan, 1889, J. 168. Fiore thinks so doubtfully as regards Italj', 1886, J. 170, Italian Civil Code, art. 56, prel. art. 1 2 ; though not where a spouse has been declared dead for continued absence, 1887, J. 156. Laurent thinks not (I). C. I., v., 139) ; and it has been so held in Guernse}', where divorce is unknown, 1889, J. 130. Bar thinks he can, Gillespie, 351. 250 COXSTITUTION OF T^IARRIAGE. generally or marriage with any particular person should thus be given effect to in other countries, e.g., persons within the prohibited degrees of kinship or affinity (c) or want of age (d). The personal law may, however, also impose a prohibition against marriage with particular persons or without the fulfilment of particular conditions, which are not so clearly entitled to recognition abroad. In two recent decisions in England dealing with the case of a marriage in England between a foreigner domiciled abroad and an English- woman domiciled in England, alleged to be invalid for infraction of the foreigner's personal law as regards capacity, in the one case for want of the consent of the husband's parents, in the other for a prohibition by his religion against marriage with a person of a different religion, the title of the personal law to decide the question of marital capacity has been disputed, and the marriage has been upheld as being in compliance with the lex loci celebrationis, though in the former case the requirement of consent was absolute and the husband was not of age. As regards this case there is, however, precedent in England for holding that the want of proper consent of a third person which was dispensable in such a case, falls under the head of formalities rather than of capacity. But the latter decision suggests (unless it be justified as a refusal to recognise a peculiar foreign religious incapacity for marriage or, as stated in the judgment, on the ground of there being no evidence upon which the Court was bound to find that the alleged incapacity of the foreigner existed) that a qualification should be imported into the general rule, to the effect that the foreigner in such a case cannot set up an incapacity imposed by his personal law for entering into a marriage voluntarily and duly celebrated according to English law, or repudiate the marriage on the ground of such incapacity, which is not recognised by English law ; and that different considerations may apply to a case where both parties belong to a country the laws of wliich forbid them to marry, from tliosc which apply in a case where only one of the parties belongs to a country whose law is to that effect (e). It is to be remarked that these decisions, so (c) Evon though tho degrees pro- ante; contra, Simoniii v. Mallac, ante; hibited by the parties' personal law are Ogden v. Ogden, [lf)().S] P. AVi, for Eng- lawful Ijy English law: Sottomayor v. lish law, and Milliken v. Pratt (1878) De Barros (1877), 3 P. D. 1. 125 Mass. ;574, for American law. {d) See Sottomayor v. Do Parros, {e) Ogden v. Ogden, [1908] P. 46, INCAPACITIES IMPOSED BY PERSONAL LAW. 251 far as they support the older principle, that the lex loci celebrationis has the final word as regards capacity, are opposed to the recent legislation requiring proof of the foreign hushand's competency to marry according to the law to which he is suhject (f). III. Incapacities Imposed by Personal Law. — Impedimenta Diri- mentia and Impedientia. — The distinction (already referred to) between the two classes of impediments to marriage, the impedi- menta dirimentia and the impedimenta impedientia, recognised in the canon law and adopted in the different municipal systems of law, is of importance for this purpose. The former make the marriage contract either in terms or impliedly null and void if they are disregarded ; the latter merely have the effect that the person performing the ceremony with knowledge of their existence commits a breach of duty, and a penalty is imposed on the parties or the person performing the ceremony. Some of these impedi- ments have been generally admitted to affect the capacities of the parties, such as the marriage being within certain prohibited degrees of relationship or affinity, error, or want of age of parties ; or resting on religious considerations, e.g., divorced persons re- marrying, or racial feelings, e.g., marriages between black and white persons in the United States; or i\,ga,in privilegia or particular prohibitions affecting persons, e.g., descendants of King George II. marrying without the consent of the sovereign ; or (perhai)s) formerly persons attainted (g) ; and all these are acknowledged as impedi- menta dirimentia in the country to which the persons belong. Other prohibitions have been treated by some laws as belonging to the former class and others as belonging to the latter, for example, want of consent of parents or guardians for minors or majors marrying, and there are others admitted to be impeditive only. In the present state of English law on the subject, both these last fall more appropriately under the head of formalities of the contract. For the present purpose, i.e., capacity of the parties to contract marriage, the right view of impedimenta dirimentia imposed by the personal law of the parties when they come to be considered by the Courts of another country, whether it is the locus celebrationis or C. A. ; Chetti v. Chetti, [1909] P. 67; (/) Marriage with Foreigners Act, and see Dicey, Law Quarterly Eeview, 1906, and the Colonial Marriages 1909, p. 202; and Baty, L. M. & E., (Deceased Wife's Sister) Act, 1906. 1907, p. 337 ; 1908, p. 218 ; 1909, p. 207. {g) See p. 255, j^ost. 252 CONSTITUTION OF MARRIAGE. not, seems to be that they should be recognised as havmg the same character as they would have m the country of the parties. Thus, our Courts recognise and apply the law of a foreign country as regards prohibited degrees of marriage, or the age for marriage, in deciding the validity of a marriage contracted by parties belonging to that country. But, as indicated above, it is a question whether our Courts will give effect to a religious incapacity imposed on a foreigner marrying an English person in England which is not recognised by English law(/0. The subdivision of impedimenta dirimentia into those 2^rivatijiiris and those jmhlicl juris is of importance in countries where pro- hibited marriages are not deemed void unless a decree of nullity is obtained in the proper Court. In the case of private impedi- ments the nullity is not declared except on the application of an interested party ; in the case of public impediments proceedings for nullity have to be taken by a public authority. It has already been pointed out that the present English law differs from that of the Continental States in regarding all prohibited marriages as void jjfr se and not merely as voidable by the decree of a competent Court, as the latter do, except where no marriage has taken place. Religious Incapacities not Generally Recognised. — Where, however, the personal law imposes on its subjects an impcdimentum dirimens based on motives of a religious character, e.g., prohibiting persons under vows of chastity or celibacy from marrying, other countries do not generally recognise them. Thus, in Austria a Christian cannot marry a non-Christian ; and an ecclesiastic in major orders in the Catholic or Greek Church cannot marry a religious person under vows of celibacy or chastity. In Kussia, Greece, and Eoumania an orthodox priest of the Eastern Church cannot marry after ordination, nor can a bishop (i). But in England, France, and Belgium, the United States, and perhaps Italy, such marriages would be regarded as valid {k). Similarly, an incapacity imposed by the personal law of the parties on divorced persons re-marrying (A) Chetti V. Chetti, [1909] P. 07. 19:5; ISSi), J. GoS ; 1892, J. 122. (/) Weiss, iii., 389; Austria, 1879, J. formerly it was hold that a priest 500; 1903, J. 450; 1907, J. 4G0, 797; could not marry, 1SS7, J. (30,07; in 1908, J. 554; Russia, 1902, J. 243, Italy there are opjiosiiig views, hut the 244. Code does not forhid it, 1880, J. 120; (/.•) France, 1880, J. 124; issl, J. AVharton, C. L., s. 154. 628; 1893, J. (i55 ; Sirey, 1888, i.. INCAPACITIES IMPOSED BY PERSONAL LAW. 253 would not be recognised by the Courts of other countries where divorce is allowed, e.;/., in England and in most of the American States such a marriage would be good, irresi)ective of the domicil of the parties, except where this is done to evade the laws of their own country, when it will be invalid, certainly in New York and North Carolina (a). Similarly, incapacities based on racial considerations or grounds of policy which are contrary to rules of public policy in another State, such as the prohibitions in certain of the United States against black and white marriages, will not prevent such marriages taking place in other countries or being recognised there (/>). The Hague Marriage Law Convention thus permits a marriage to take place in a country not that of the parties who are prohibited by their personal law from marrying, if such prohibitions are based on. motives of a religious character, although the Courts of other signatory States may refuse to recognise it (c). Dispensations. — In many States certain impcdi)nenta diriment'ui may be removed by dispensation from ecclesiastical or public authorities, and if this has been obtained the parties are as capable of marrj^- ing abroad as they would be at home. It has been discussed whether the authorities of the locus celebrationis can remove such difficulties by granting dispensation themselves, and the better view seems to be that they can only do so in the cases allowed by the personal law of the parties {d). In certain States, e.g., Russia, the dispensation granted by a foreign Government to foreigners to marry in Russia will not be recognised by the authorities (e). Examples of such dispensable impediments are marriages within prohibited degrees, such as those of uncle and niece, aunt and nephew, in certain systems (/). Consent of State Authority. — In some States the consent of the Government is required for the marriage of its citizens abroad (g). In Germany and Austria military officers must obtain the leave of their superiors before marrying, and the absence of such consent is {a) Wharton, s. 135; Bishop, s. 869. (/) France, Code Civil, arts. 162— {h) France, 1885, J. 296; Dicey, 164; Weiss, iii., 426; so Germany, 634; Wharton, s. 159; Bishop, s. 865. Code Civil, arts. 1303, 1312, 1313; (c) Arts. 1, 3, 4. Denmark, Martens, Eec. Gen. de ((i) Bar, 357 ; France, 1877, J. 573; Traites, 1898, 502; Belgium, I'hid., Weiss, iii., 427 ; Laui'eut, D. C. I., iv., 465 ; British Pari. Pap. Misc., No. 2, 327. 1894 (144, 145), 53, 28. (e) 1902, J. 244. (g) E.g., Lichteustein, 1892, J. 1099. 254 CONSTITUTION OF MARRIAGE. an imjjedimoitum impcdiens ; and a similar rule prevails in France, the penalty being retirement. This consent may be required for any subject generally or for particular classes or individuals only, e.g., members of a reigning Eoyal House or nobles. It is not clear whether such marriages should be held void in any other country than that to which the parties belong, but it is i^robable that only a condition of consent which is of universal application will be given this effect (h). Privilegia. — British Royal Marriage Act. — Burge cited as the most prominent instance of a p''i'^'ii<^oii^'>f or impediment affecting parti- cular individuals in our law the Eoyal Marriage Act of 1771, which enacts that " no descendant of King George II., male or female (other than the issue of princesses who have married or may hereafter marry into foreign families), shall be capable of contracting matrimony without the x)revious consent of his Majesty, his heirs or successors, signified under the Great Seal and declared in Council, and that every marriage or matrimonial contract of any such descendant without such consent first had and obtained shall be null and void to all intents and purposes whatsoever " (i). This Act does not in express terms restrain nor can it from the nature of its provisions be construed to restrain its operation to a matrimonial contract made in England only. The conditions which it enjoins admit of a performance in whatever place the marriage is celebrated (A). The Courts of England must necessarily be bound by this statute, and could not recognise a marriage contracted in contravention of its provisions. But if this Act be considered as afiectiug those who are the objects of legislation by the British I*arliament and without regard to the relation in which the descendants of George II. formerly stood to the kingdom of Hanover (until that kingdom ceased to exist in 1866), foreign tribunals would not, consistently (/i) France, 1882, J. 539; but such this author admits (p. 364) that there marriage will be treated as putative is a deartli of adjudicated cases if &o;«iy?(7e for spouses and issue. Fiore directly upon the point and that no thinks that in Italy a condition of exceptions have as yet appeared vary- consent, even though applicable only ing the rule that a marriage invalid to individuals, would bo recognised by where celebrated for want of capacity the Courts as affecting capacity of is invalid everywhere, parties: 1887, J. 54. In the United (/) 12 Geo. 111. c. 11, s. 1 ; Burge, States this impediment would not, it 1st ed., i., 198. seems, be recognised, Wharton, C. L., {k) Sussex Peerage Case (184-1), 11 1905, i)p. 304, 357, 358 ; although CI. & F. 85. CAPACITY OF BOTH SPOUSES REQUIRED. 255 with the principles on which the coinitas fientinin is adopted, treat it as valid (I). British Act of Attainder. — Another alleged instance of a special incapacity imposed by English law on an individual is an Act of attainder, which caused corruption of blood and an incapacity to take or transmit an inheritance, but not an incapacity to contract. It seems that a person attainted is not incapable of contracting a valid marriage within British dominions, and d fortiori not incapable of contracting such a marriage abroad (//?), and such a marriage in the former case is only voidable, not void (n). Marriage Legalised hy Special Act of Parliament. — Another instance of the same principle is afforded by the validation of a marriage by Act of Parliament in case of any doubt as to its legality, which acts as a ratification of the marriage and makes it good ah initio (o). IV. Must both Parties he Capahle hy their respective Personal Laws ? — It has been suggested that both parties need not be capable by their personal laws of marrying each other, and that the require- ments of the husband's law only need be satisfied (jj), but on principle this seems incorrect. The Hague Convention declares for this view(g), and in France it has been so determined by the Courts (r). In Belgium a recent law requires that as regards capacity for marriage qua age the husband must be qualified by Belgian law and the wife by the law of her country (s). In Germany the new Code requires that each party should have capacity by his or her respective personal laws ; and the wife who has been a German before her marriage or become a German after her foreign husband has been declared dead, cannot re-marry except so far as the German (/) Fiore, however, thinks that the civilly dead aud German morganatic Italian Courts woukl recognise this marriages : Foote, 110. impediment as affecting the capacity (o) Dicey, 635 ; e.g., 1888 (51 & 52 of the particular class of persons, 1887, Vict. c. 28). J. 54; and see Bar, s. 168, n., to the (p) Dicey, 634, citing Sottomayor i-. same effect, and aiite, p. 251. "Weiss De Barros (1877), 3 P. D. 1, 6, 7 (but expresses a contrary opinion as regards only with reference to the case of the its effect in France : iii., 421. husband being a British subject) ; Bar, (m) Kynnaird r. Leslie (1866), L. E. 352, 355. 1 C. P. 389 ; Erie, C.J., aud Willes, J. (q) Ai-t. 1. (n) Ihid., per Willes, J., p. 400, (r) 1880, J. 300, Clunet; Sirey, 1845, who distinguishes them from French ii., 218; contra, Weiss, iii., 428. provisions as to marriages of persons (s) Law of May 20th, 1882. 1/ 256 CONSTITUTION OF MARRIAGE. law authorises her to do so(0- The Hungarian marriage law makes a distinction between impediments based upon the age and contractual capacity on the one hand and all other imj)ediments on the other ; the requirements of age and contractual caj^acity are governed by the respective personal laws of each party, and all other requirements by the personal laws of both of them ; except ^Yhen a Hungarian bridegroom marries a foreign bride, in which case the Hungarian law alone governs, but otherwise the age and con- tractual capacity of the foreign bride are determined by her personal law(»)' The English decisions seem to require capacity on the part of each spouse (r). Y. Personal Law may prevail over Lex Loci Celebrationis. — For certain prohibitions, the fact that they are constituted by the lex loci celehratiunis is not enough to prevent a marriage contracted in spite of them being held good in other countries, if it is good by the personal law of the parties. The Hague Convention specifies the following prohibitions by the personal law as entitled to recognition : (a) The marriage being within certain degrees of relationship or afi&nity (.r) ; (b) if the parties have been guilty of adultery on account of which the marriage of one of them has been (t) German Civil Code, Introd. Law, 197). For the English law as to mar- art. 13;' Bar, 352. riage of deceased's wife's sister, see (m) MarriagelawoflS94, arts. 108 — Merignhac, 1902, J, 5; and Lex Fori, 109. below. In German law illegitimate {v) Mette V. Mette (1859), 1 S. & T. affinity is a bar (Civil Code, s. 1310). 416; 28 L. J. P. & M. 117 ; In re The same rule applies in France : Civil Alison's Trusts (1874), 31 L. T. 638, Code, ss. 161, 162. So for relations wife's incapacity under lex loci which by adoption : German C. C, s. 1311. referred the question to the religious In the United States, the wording of denomination of the parties and thus the statute in sixteen States and under national religious law ; but see Territories would seem to forbid both Chetti V. Chetti, [1909] P. 67. cases of illegitimate affinity : Stimson, (x) English law does not now recog- Amer. Stat. Law, s. 6111. See as to nise illegitimate affinity (28 Hen. VIII. prohibited degrees, Commonwealth v. c. 7; Wing r. Taylor (1861), 2 S. & T. Lane (1873) (Mass.), 15 Amor. Ecp. 278 ; .30 L. J. P. 25.S), but it ai)plies the 509 ; Eraser, 11. & W. 130, 131. War- 2>rohibited degrees to illegitimate blood riage within prohibited degrees (see relations of a spouse, e.y., a man may post) in Scotland is a criminal oiience marry the daughter of a woman with jninishable with penal servitude, e.g., whom he has cohabited, but cannot marriage of uncle and niece : L. A. v. marry liis wife's illegitimate sister or Stewart aud Wallace (18-15), 2 liroun the latter's daughter (R. r. lirighton Justiciary Cas. 544. (1S61), 1 I}, it S. 447 ; 30 L. J. M. C. IMPEDIMENTS BY LEX FORI — POLYGAMY. 257 dissolved (?/) ; (c) if the parties have together attempted the Hfe of the si^ouse of one of them {z). This principle seems to rest on the local character of these jjrohibitions. Similarly, by the same treaty, a signatory State ma}^ decline to allow a marriage to be celebrated within its Jurisdiction which is contrary to its laws by reason of a religious obstacle or a previous marriage, but other signatory States cannot treat it as invalid. Thus a State is not bound to allow divorced persons entitled by their personal law to marry to do so within its jurisdiction if its law does not recognise divorce, though a later clause of the Convention provides that it must in such a case allow the marriage to take place before a diplomatic or consular agent of the State to which the parties belong {h). VI. Impediments by Lex Fori. — Polygamy. — Where the validity of a marriage celebrated in one country is brought before the Courts of another it is necessary to consider the effect of the law of the tribunal as well as the personal law and law of the place of contract ; and the Court is entitled to apply the impedimenta dirinientia of its own law to the question whether a valid marriage has been created. It can refuse to give effect to the law under which the marriage was contracted if that sanctions a violation of the precepts of the Christian religion or of public morals or of its own policy. A marriage founded on polygamy or which is incestuous (c) will not be recognised in any Christian country although it may be warranted by the municipal law of the country in which it was contracted or by the personal law of the parties (<:Z). English Courts have [y) So provided in the German Civil in Fenton v. Livingstone (1859), 3 Code, ss. 1312, 1322, though dispens- Macq. 497, at p. 534. able (1902, J. 920; and see Code (2) So the law of Argentina (Martens, Civil, s. 298) ; Austria, 1898, J. 179, 1898, 432) and Brazil {ihid., 487) ; and 942 (Catholics) ; Portugal, Martens, see British Pari. Paper, Misc., No. 2, Eecueil, 1898, 561 ; Brazil, ibid., 487 ; 1894, 2, 42, 103, 142, as to foreign laws. Eoman-Dutch law in Cape Colony (i) Arts. 3, 6. See paper by De (Scott V. A.-G. (1886), 11 P. D. 128, Leval, Int. Law Ass., Antwerp Eeport, 130) ; law of Tennessee, 1889, J. 903. 400. Austria does not recognise A seducer cannot marry by Swedish divorce for Catholics, 1898, J. 942, 179 ; law: Martens, 1898,611. So the law and see above; also see Meili, Inter- of Scotland forbids it, and it is national Civil and Commercial Law, doubtful whether the Scotch Court by Kuhn, 1905, pp. 226, 227. would recognise a foreign marriage of (c) See p. 259. such parties if valid by their personal [d) Biu-ge, 1st ed., i., 188, citing law. It certainly would not as regards Huber, de Conflictu Legum, lib. i., land in Scotland : Beattie v. Beattie tit. 3, n. 8. (1866), 5 Macj^h. 181 ; Lord Brougham M.L. 17 258 CONSTITUTION OF MARRIAGE. thus declined to exercise jurisdiction over marriages which do not fulfil the essential condition of being " an union for life of one man and one woman to the exclusion of all others," but will take cogni- sance of those having this characteristic whether Christian or not. They have accordingly refused to dissolve a polygamous marriage, such as that of Mormons, or an African native marriage, but have recognised a marriage according to Japanese rites (e). Foreign Courts take the same view, though contracting a polygamous marriage is recognised as a lawful act and not bigamous where the parties' personal law allows it. A Frenchwoman marrying a Turk naturalized in France, who afterwards resumes Turkish nationality in Turkey and marries several wives there, is regarded as his wife by a French Court (/) ; and an English subject domiciled in Turkey has been held liable by our Courts for breach of promise to marry when he was already married (g). Polygamy is recog- nised in Algeria for native Algerians by French law (//). In Eussia it has been held that the personal law of the man determines its validity (/). In China and Formosa polygamy is forbidden, but concubinage is allowed (k). In Egypt a Mussulman may marry a Christian wife and place her in his harem (/). In the United States polygamy has been forbidden by Congress, though allowed by the (e) Hyde *;. Hyde and AVoodmansee Minn. 3(51 ; 4-1 N. W. 254. A recent (1866), L. R. 1 P. & D. 130, 133; decision throws doubt upon whether In re Bethell(1888), 38 Ch. D. 220; such a union may be deemed a Brinkley v. A.-G. (1890), 15 P. D. 76. maiTiage in the international sense, See Warrender v. Warrender (1835), 2 but the precise ground for denjang CI. & F. -188, 531 ; Ardaseer Cursetjee it recognition was that the tribe had V. Perozeboye (1856), 10 Moo. P. C. C. lost territorial jurisdiction at the time 375, 418 ; In re Ullee, the Nawab of the marriage : Kalyton v. Kalyton Nazim of Bengal's Infants (1885), 54 (1904), 74 Pac. 491 (Ore.). L. T. 286; Armitage v. Armitage (/) 1888, J. 243. (1866), L. E. 3 Eq. 343; 2 Kent, (g) Hattena r. Joseph, 1893, J. Comm. 81. In Italj' a wife escaping 915. from the harem of an ex-Egyptian (A) 1892, J. 227. To constitute prince was held capable of marrying bigamy in English law the first an Italian : 1880, J. 338, n. In the marriage must be valid, though it United States, the State Courts uiay be made abroad : In re Harris have upheld marriages of American Winberg (1899), J. 165 ; Earl Russell's Indians when contracted while living Case [1901], A. C. 446; 1901, J. in a separate community, notwith- 190. standing that such mamagcs are dis- (/) 1902, J. 200. eoluble at the will of one or both of (k) 1903, J. 117. the parties: Earl r. Godley (1890), 42 (/) 1902, J. 650. PROHIBITED DEGREES. 259 legislature of a State and by the tenets of a religious community (m). In the case of a spouse declared dead and reappearing after the other has re-married in Roman Catholic countries the second marriage is treated as a nuHity, e.g., in France or Austria; while in Protestant countries judicial declaration of the first husband's death has the effect of dissolving the marriage, cfi., in Germany (n). Prohibited Degrees. — Ascendants and Descendants. — Brother and Sister. — A fortiori the lex fori may apply its own theory of pro- hibited degrees of marriage to a foreign marriage contracted between parties related to each other within those degrees which all Codes concur in treating as prohibited, as marriages between relations by blood in the ascending or descending line and between brother and sister by blood, because marriages between such relations are universally regarded as incestuous and void (o). The term " incestuous " has different meanings in different countries. Collaterals. — But there is a great difficulty in determining when the prohibition of marriages between persons related in the collateral line in any degree beyond that of brother and sister can be sustained on the ground of their repugnancy to the law of nature and therefore that the prohibition is of universal obligation, "J)e conjugiis eorum qui sanguine aut affinitate junguntur satis gravis est qutpstio et non raro magnis motibus agitata. Nam causas certas et naturales cur talia conjugia, ita ut legibus aut moribus vetantur, illicita sint, assignare, qui voluerit experiendo discet quam id sit difficile, immo prasstari non possit " (7>). Marriage with Deceased Wife's Sister. — On the other hand, other marriages within the prohibited degrees are variously regarded by different systems of law, by some as incestuous, by others as merely prohibited for their citizens. Marriage with a deceased wife's sister was formerly- forbidden and void by the law of England (q) (m) In 1862, Wharton, ss. 130, 131 ; Ventr. 9 j Vaughan'sEep. 206; Butler Reynolds v. U.S., 98 U.S. Uo. v. GastriU (1722), Gilbert's Eq. E. 156, (n) Wharton, s. 133; Bishop, s. 283 ; Delegates; Heineccius, Elem. Jur. in New York after five years' absence Nat. et Gent., lib. 2, c. 2, ss. 40, 41 ; the marriage is voidable from then Blackmore and Thorp r. Brider(lS16), and the other spouse can mari-y. 1 Hagg. Cons. 393, u. ; liurgess r. Bui'- (o) Bui-ge, 1st ed., i., 188, citing gess (1804), //>/(/., 384 ; Bishop, s. 861. Grotius, De Jure Belli & Pacis, lib. ii., (p) Burge, 1st ed., i., 188, citing c. 5, ss. 12, 13, 14; 2 Kent, Comm. 83, Grotius, De Jure Belli & Pacis, Lib. 2, 84 ; Wightman v. Wightman, 4 Johns. c. 5, s. 12. Ch. 343; Harrison y. Burwell (1671), 2 (g) Burge, 1st ed., i., 189, citing 17—2 260 CONSTITUTION OF MARRIAGE. and regarded as incestuous by the law of Scotland (;), but is now legalised by 7 Edw. YII. c. 47. It is also legal by the laws of most of the United States, Canada and other British Colonies and Protectorates (see above), Austria-Hungary, Germany, Brazil, Mexico, Portugal, Sweden, and Switzerland, and by dispensation in Belgium, Denmark, France, Holland, and Luxemburg, but illegal by the law of Argentina, Greece, Pioumania, Piussia, and Servia (s). It was held in England (before the recent Act) that such a marriage celebrated abroad between persons whose personal law allows of it, although one of them is an English- woman by origin, is valid in our Courts {t). But only the domicil and not the religious faith of the parties can be looked to for this purjDose, and Jews domiciled in England cannot marry abroad within the degrees prohibited by English law although allowed by the Jewish ritual (it). In France it has been held that a marriage between a brother and sister-in-law of French nationality in England is null in France unless preceded by dispensation from the French authorities (v). In Massachusetts the Courts gave a similar ruling, laying it down that such a marriage not being naturally unlawful but prohibited by the law of one State and not of another, if celebrated in a State where it was lawful, should be held valid in any other State (a-). In Kentucky it has been held that a marriage of two Kentuckians so related in Tennessee, where they had gone to evade their own law, as it was not prohibited there, is good in Kentucky (y). Uncle and Niece.— This marriage is forbidden and void in England, and in many States and Territories of the United States, and it Harris v. Hicks, 4 .fc 5 Will. & Mar., {t) Bozzelli's Settlement, [1902] 1 2 Salk. 548; Hill v. Good (^1673), Ch. 751 ; see Dicey, 615, 62G ; Mette ;\ Vaughan, 302 ; Eay v. Sherwood Mette (1859), 1 S. & T. 41« ; 28 L. J. (1836), 1 Curt. 173 ; Butler v. Gastrill P. & M. 117; Brook v. Brook (1861), (1722), Gilbert's Eq. E. 156; and see 9 H. L. C. 193, 212, 213. 2 Kent, C'omm. 85, n. ; Mette v. Mette (») De Wilton v. Montefiore, [1900] (1859), 1 S. & T. 416 ; 28 L. J. P. & M. 2 Ch. 481. 117 ; Brook v. Brook (1861), 9 H. L. C. (v) 1875, J. 21. 193, 212, 213. (x) Greenwood v. Curtis, 6 Mass. E. (r) Fenton r. Livingstone (1859), 3 378, 379; Medway v. Needham, 16 Macq. 497. Mass. 157, 161 ; Wightmau v. Wight- («) 1902, J. 5 ; British Pari. Paper, man, 4 John. Ch. Eep. 343 ; Stevenson 1894; and Martens, Recueil do Traites, v. Gray, 17 B. Monr. Ky. 193, 210. 1898, xxiii., 430 et 8e>j., pussim. (y) Stevenson v. Gray, ubi cit. sitp^ PROHIBITED DEGREES — EXTERRITORIAL RECOGNITION. HG 1. has been said to be incestuous (z), but it is allowed by the laws of some of the United States, Argentina, Germany, Brazil (though community of marital property is not created in such a case), and by dispensation in Austria, Belgium, Denmark, France, Italy, Luxemburg, Netherlands, and Portugal, though forbidden by the laws of Greece, Hungary, Eoumania, Spain, Servia, Sweden, and Switzerland (a). In Switzerland, as with us, a great-uncle or great- aunt can marry niece or nephew respectively, though they cannot in France (h). It therefore seems to fall within the category of prohibitions founded on municipal laws and not therefore of universal obligation (c) ; and in the case of foreigners, uncle and niece, married by dispensation abroad validly according to their personal law, it seems that such a marriage would be recognised as valid in England, except for succession to real property (d). In the United States, at common law, such a marriage is voidable and not void as with us, but in many States, e.g., Maryland, it is void by statute ; but it has been held that restrictions beyond the first degree of lateral consanguinity should not be recognised, and that although such a marriage between two foreigners abroad, which is incestuous by their law, is not valid here, still such a marriage between them in the United States under those circum- stances would be valid (e) ; and in Kentucky it has been held that the marriage of two Italians in Switzerland, although by Italian law such marriage was illegal, and no evidence was given of the Swiss law on this point, was valid in Kentucky ( /'). Exterritorial Recognition of Prohibited Degrees. — Surge's View. — In considering prohibitions which are founded on municipal laws, and are not therefore of universal obligation, the question arises, how far a marriage contracted within degrees not prohibited by the lex loci contractus, will be recognised in another country, where persons within those degrees are prohibited from marrying. In one of the American Courts it was decided that such a marriage (2) Burgess v. Burgess (1804), 1 art. 100. Hagg. Cons. 384; Woods v. Woods {<■) Dice j', 631. (1840), 2 Curt. 516; Stimsou, Amer. {(/) Birtwhistle /•. Vardill (1840), 6 Stat. Law, s. 6111. Biug. N. C. 385 ; though, not perhaps (a) Martens, Eecueil, 1898, xxiii., in Scotland for any purpose: Fenton 430 et seq., iiassim. i\ Livingstone, nhi cit. sup. (h) 1876, J. 514,418 ; Swiss Federal (e) Wharton, ss. 136, 137. Law, 1878, art. 28; Civil Code, (/) In 1808 ; Wharton, s. 140. 262 CONSTITUTION OF MAREIAGE. ought to be recognised. On that occasion the following opinion was expressed : " If a foreign State allows of marriages incestuous by the laws of nature as between parent and child, such marriage would not be allowed to have any validity here. But marriages not naturally unlawful, but prohibited by the law of one State and not of another, if celebrated where they are not prohibited, would be holden valid in a State where they are not allowed. As in this State, a marriage between a man and his deceased wife's sister is lawful, but it is not so in some States ; such a marriage celebrated here would be held valid in any other State, and the parties entitled to the benefits of the matrimonial contract " (r/). The doctrine thus stated by the Court of Massachusetts, if it be confined to cases in which the party had acquired a bond fide domicil in the country which sanctions a marriage prohibited by the law of his former domicil, may be readily admitted. It ought not, however, to be extended to cases in which the party retains his domicil in the country where the prohibitory law prevails, but quits it and resorts to another country, for the single purpose of evading that law, and of doing that which the law of the latter country permits, or rather does not prohibit. The opinion of Huber is very decided against such an extension of this doctrine. " Brabantus uxore ducta dispensatione Pontificis, in gradu prohibito, si hue migret, tolerabitur ; at tamen si Frisius cum patris filia se conferat in Brabantiam ibique nuptias celebret, hue reversus non videtur tolerandus ; quia sic jus nostrum pessimis exemplis eluderetur" (//). In Mulier's "Promptuarium" a similar opinion is to be found: " Si in loco ubi sponsus domicilium habet, matrimonium in eo gradu, quo sponsus sponsse junctus, prohibitum, in domicilio sponsie vero permissum est, et sponsus ut legibus domicilii sui se subducat, in domicilio sponss nuptias contrahit, sponsus a principe suo punitur, et matrimonium irritum declaratur. Sponsa puniri nequit, quia tempore initarum nuptiarum istis legibus nondum obstricta erat, nisi se autem iisdem subjecerit" (i). Thelaww^hich prohibits persons related to each other in a certain (.7) Bulge, 1st ed., i., 189, citing (h) Huber, de Conf. Leg., lib. 1, Greenwood r. Curtis, Mass. R. 378, tit. .'}, n. 8. 379; Medwayv.Noedhani, 16Mass. E. (/) Mulier, Prompt, tit. Mutri- 157, 161 ; Wightnian v. Wightmau, 4 moniuiii, 11. ) 1895, J. 616; 1898, J. 138. (/) Code Civil, s. 171; Dutch C. C, (c) Marriage Act, 1824 (4 Geo. IV. art. 139; Italian C. C, art. 101. c. 76), s. 22; 1837 (7 Will. IV. & 268 CONSTITUTIOX OF MARRIAGE. eland e stint fas or invalidate the marriage, though it ma}^ afiford evidence of it in conjunction with other matters (r/). Actes Respectueux. — Another similar formality is the requirement found in some systems (French and Belgian) for children who have attained majority to demand by acte respectueux et formel the counsel of their parents, or that of their grandparents if their parents are dead or cannot signify their wishes, and failing their consent the marriage may be celebrated in a month's time, if no opposition is lodged against the marriage. If it is so lodged the Court decides (/<)• It is now settled law that the omission of an acte respectueux will not per se be a ground for annulling the marriage; and collaterals cannot take advantage of this or of non- publication to attack the marriage (i). But either may be evidence of fraud, and thus may be a ground of nullity (k). In Italian law no ((ctes respectueux are required. Want of Consent. — x\nother requisite specified by all the Codes for marriage in the case of persons under a certain age is the con- sent of parents or guardians, which on principle should be an impedimentum dlr'imens as affecting the capacity of the parties (Z). This is the view taken by the Courts of every country but Great Britain and the United States (m). The English Courts have regarded the condition as one of form only, and foreigners marrying in England without the consent of parents required by their ((]) 1881, J. 515, oKJ; 1884, J. 67, (0 1890, J. 914; 1900, J. 148; 627; 1897, J. 643; 1898, J. 912; 1882, J. 531. 1902, J. 613; Demangeat on Foelix, (/c) 1893, J. 1170; 1891, J. 227, 306 ; Weiss, iii. 470ei;«cry. Eegistration 1213—1215 ; 1890, J. 487 ; 1900, J. 148. may be made after death of si^ouses : [I) Code Civil, .s. 148 ; German C. C, 1900, J. 592. ss. 1305, 1306 ; Italian C. C, art. 63 (//) Code Civil, s. 151; French law (adoptive children): Hungarian law of of June 20th, 1896; Belgian law of 1894, arts. 8, 9. The Swiss Code, art. April 30th, 1896, which does not 128, following art. 52 of the law of include grandparents. Since the 1874, does not allow a marriage to be French law of June 21st, 1907, annulled on the groiind of absence of children of either sex between the parental consent after the sjwuse has ages of twenty-one and thirty inclu- attained full capacity or the wife has sive, in default of the consent of father become pregnant, and mother, must serve them with a {m) France, J. 1887, J. 476 ; 1882, " notification " drawn up by a notary, J. 308; 1883, J. 388 ; 1S88, J. 90; and thirty days after service the Austria, 1894, J. 1074 ; Germany, marriage may be proceeded with 1893, J. 604; and consent may be (arts. 151 and 154, Code Civil, new). supplied by ratification bj' parents. See Rev. Trim. 1907, p. 657. WHERE PARTIES ARE OF DISTINCTIVE FAITHS. 269 pert5onal law are validly married here although their marriage is void in their own country ; and in the United States this is true even where the intention was to avoid the personal law (/t)- Historically, this view is the more correct, as by the canon law the want of consent of parents or guardians did not invalidate the marriage of minors if they were of marriageable age, and it was only a private impediment which could be removed by subsequent cohabitation or consent. Want of it was indeed made an impedinieiitum diiiniens by Lord Hardwicke's Act, 1753, though altered again by the present Act of 1824. In Ireland want of consent to the marriage of minors under twenty-one formerly made the marriage voidable within a year, but after that time it was good (o). In California consent of parents has been held essential for such marriages. In France the marriage of Jerome Buonaparte with an American lady in Baltimore was held invalid for clandestinity and want of consent, as contrary to French law, but it was upheld by the Pope on the ground that secrecy was only fatal to a marriage by the Council of Trent, and this had never been proclaimed in Baltimore (^). The lex loci cannot impose upon a foreigner wishing to marry in its jurisdiction a con- dition that he should obtain the consent of ascendants when by his personal law that consent is not necessary (g). Where Parties are of Distinctive Faiths. — Many legislations allow members of particular sects, Jews, Quakers, Dissenters, and the like, to use their special forms of marriage ; but the efiect of such a marriage is of course subordinate to the general local law (?•), This (n) Simonin v. Mallac (1860), 2 {p) Wharton, s. 152. S. & T. 67 ; 29 L. J. P. & M. 97 ; 0/) Stoerk, 1883, J. 6. lu France U.S. (Calif.) 1899, J. 908; Com. y. consent need not be given if not Graham (1893), 157 Mass. 73 ; Court- required : 1883, J. 397. right ('. Courtright, 26 Ohio L. J. 309 ; (r) Thus English law (see p. 51, Ogden V. Ogden, [1908] P. 46, where above), in the case of Jews requires it was pointed out that a marriage registration as well as Jewish foi'm without consent under French law is of marriage; and a Jewish betrothal voidable, not void, and valid unless is not equivalent to marriage proceedings are taken for that purpose. in England, 1899, J. 1032; and (o) Lord Stowell, Dalrymple v. 1902, J. 379, Szapira Case. For Dalrymple (1811), 2 Hagg. Cons. 54; Eussian law as to marriage of Jews, Lindo V, Belisario(1795), 1 Hagg. Cons. Mussulmans, and pagans in Eussia, see 216; Horner v. Horner (1799), Ibid. 1879, J. 547. For American law see 337; Wharton, ss. 154, 165—174; Meister v. Moore, 96 U.S. 76, and Steele v. Eraddell (1838), Mil ward's Com. v. Munson, 127 Mass. 459. Eccl. Eep. Ir. 1. 270 CONSTITUTION OF MARRIAGE. does not as a rule affect the question of the parties' capacity to marry each other ; although in Austria different prohibited degrees of affinity are recognised for Jews than for other Austrian sub- jects (.s), this is -not so in English law (f)- In the United States, the laws of Massachusetts and Rhode Island except Quakers from the operation of the statutes as to the formalities of marriage (u). VIII. Exterritorial Marriages, Diplomatic or Consular. — Besides those cases in which a State requires from its subjects marrying abroad the fulfilment of certain conditions and formalities required by its law, there is another case in which a marriage not in accordance with the lex loci will be valid, certainly in the State to which the parties belong, and also according to many systems in the State where the marriage is performed, namely, a marriage between foreign subjects performed according to the forms of their law before diplomatic or consular officers of their country. The Hague Convention adopts this principle as binding on its signatories ; " a marriage celebrated before a diplomatic or consular officer conformably to its legislation should be recognised every- where as valid in point of form if neither of the two contracting parties is a subject of the State where the marriage takes place and that State does not forbid it. It cannot forbid it in the case of a marriage which by reason of a previous marriage or an obstacle of a religious character would be contrary to its law." The proviso of art. 5, namely, the saving of the right of a State to refuse to recognise a marriage contracted by its subjects abroad in disregard of its own law prescribing a religious ceremony, is also applicable to diplomatic and consular marriages (x). This provides for the case of persons lawfully divorced according to their personal law who wish to marry again in a country where divorce is not recognised, and secures for them the right to be married before their diplomatic officer there. In nearly all States, where both parties are, as in this case, of the same nationality, such a marriage is recognised as valid by the lex loci iy). («) Austria, C. C, art. 125. (v) IJnilet v. Bailet (1901), L. M. & [t] De Wilton /•. Moiitefiore, [1900] R, xxvi. o47. Ilollaud only gives its 2 Ch. 481 . consuls power to marry Dutch persons, («) See note (r), p. 269. 1889, J. :m, and so does Italy, for (x) Art. 6. Italians, except in Turkey ; see 2}ost. EXTERRITORIAL MARRIAGES. 271 The laws of Hungary {z) and Switzerland (a), however, do not allow to such marriages performed within their jurisdiction any validity, but insist on the local form being followed and the ceremony taking place before the ordinary civil officer. In Germany the same rule applies on principle {h), but it has been modified by the Hague Convention as regards the subjects of any countries members of that Convention, as well as regards the subjects of other countries by separate international treaties. Where only one of the parties to such a marriage is a subject of the country of the diplomatic officer, and the other is a subject of the country where the marriage takes place such a marriage will not be recognised in the latter country (c); nor, it seems, according to the later view, should it be in the former country {d). A fortiori, where neither party is a subject of the diplomatic officer's country, no country recognises the marriage as valid, though it seems possible under the United States' legislation, which only requires parties to have capacity to marry as if resident in the District of Columbia. In England, however, it has been held that a marriage betw'een an Englishman and a Frenchwoman in France before a British consular officer is valid, although it is void in France (e). In many countries, even those which do not admit the validity of such marriages when performed within their jurisdiction {/), consular officers abroad are given power to marry subjects and persons of another nationality (g). The British Foreign Marriage Act, 1892, (z) The Hungariau law expressly Hagg. Cous. 136; Lautour i'. TeesdaJe admits as valid the diplomatic marriage (1816), 8 Taunt. 830; E. i'. Brampton of a Hungarian man with a foreign (180s), 10 East, 282 ; Lehr, 1885, J. bride (arts. 29, 31). 657 ; Fiore, 1886, J. 304. (a) 1893, J. 664. For Switzerland, (e) Hay v. Northcote, [1900] 2 Ch. Feuille Federale (Buudesblatt), 1888, 262 ; 1902, J. 151. See 1907, J, 335. ii., 519; Eoguin, Conflits des Lois ( /') Germany, 1889, J. 37; Bar, Siiisses, 63, 64 ; 1897, J. 741, 742. 1887, J. 700; Italy, 1889, J". 36. in {b) Grerman C. C, Introd. Law, Turkey onlj-. art. 13, except by special conventions. (g) In Turkey consuls of Belgium, (c) So held in France, 1874, J. 71 — Germany, and Italy can marry their 75; 1898, J. 911; 1899, J. 825; subjects and foreigners; consuls of Belgium, 1881, J. 84 ; and it would Holland can marry their subjects, be so in England : Dicey, 620. Brazil 1889, J. 33 ; but consuls of Austria, allows Holland the privilege of the Greece, and Russia cannot do so : «7yn/., Dutch consul being able to marry 38 ; and those of Switzerland can only Dutch persons to persons of any do so by express authorisation of the nationality except Brazilians : Ann. Federal Council: Federal Law of 1874, de Leg. Etrang. 1880, 568. art. 13 ; see Eoguin, Conflits des Lois {d) Pertreis v. Tondear (1790), 1 Suisses, p. 71. 272 CONSTITUTION OF MARRIAGE. does so, but the Orders in Council regulating its administration seem to restrict this power to the case where both parties are of British nationality (h). Austria, however, does not allow her consuls the power of celebrating marriage even for Austrian subjects (i). Recent laws of France and Belgium allow their consuls to celebrate marriages between their subjects or a subject and a foreign wife, but not if the husband is not a subject but the wife is so only, but restrict its application to cases where the parties would not be able to marry otherwise (/t). It is doubtful if by analogy this Belgian law would allow diplomatic marriage in Belgium before the consul of the wife's country only (l). France allows a consular marriage in France to which a French person is a party to have the effect of a putative marriage (//i). In Belgium there is a special law regulating marriages of Belgians in foreign countries, i.e., diplomatic or consular marriages. In the United States it seems that such marriages by its consular agents will only be recognised at home as valid if satisfying the local law (h). But the effect of this rule has been varied in a few States by statutes providing that marriages solemnised by domiciled subjects abroad before American diplomatic agents will be regarded as valid (u). A committee of the American Bar Association on Uniform State Legislation has elaborated a draft statute providing for the recognition of consular marriages where one of the parties is a citizen of any State or Territory (_^j). IX. Marriage where Local Form cannot be used. — English law also recognises the validity of marriages abroad celebrated according to English forms where the local form is inapplicable, e.g., in the lines of a British army, in European settlements and factories in Eastern countries (q) ; and similarly in the United States Indians have been allowed to contract a valid marriage, following the forms prescribed by tribal customs (?•). But the more general oj^inion is in favour of the local forms being followed ; in France the validity of a religious marriage of a French subject performed in the Levant (h) Ante, pp. 185, 186. ton, ss. 179, 180. (i) 1889, J. 31. (o) Mass. Gen. Stat. c. 106, s. 23. (A-) France, 1902, J. 1113; 1908, J., (p) 4 Columbia Law Rev., 1904, 626 ; Belgium, 1885, J. 46, 51. pp. 243, 246. (/) 1892, J. 423. {q) Rurliug ». Smith (1821), 2 Hagg. (»n) 1893, J. 880; 1900, J. 909; Cons. 371. though not always : 1898, J. 911. (r) Boyer v. Dively, 58 Mo. 510. (n) 1886, J. 306, Fiore ; see Whar- MARRIAGE WHERK LOCAL FORM CANNOT BE USED. 273 and recognised by the local law has been upheld (s) ; and as far back as 1809 the French soldiers of Napoleon's expeditionary force to Egypt were held to have contracted valid marriages there according to the local forms (t). In Turkey foreigners can marry validly accord- ing to the forms of Turkish law ; but Christians in Turkey must marry before their priests (n). Non-Mussulman Turkish subjects must, it seems, marry abroad according to religious forms {v) ; while if Mussulmans, they can marry abroad according to the local forms or at their embassy ; their consuls have not such power (x). Conclusions. — The following propositions have been laid down with regard to the questions dealt with in this chapter (//) : — (1) The form of marriage is regulated by the lex loci actus or celebrationis, except in the case mentioned in (2), though some countries require a religious ceremony in all cases. (2) When there is no form according to the lex loci the parties may adopt their personal law. (3) The essentials of marriage should be regulated by the personal law and by the lex loci, both should be complied with. (4) The essentials are always three : freedom from previous mar- riage, freedom from prohibited degrees of relationship and sufficient age. Many countries add a fourth, consent of parent or guardian. (5) "When the personal laws of the two parties differ as to any of the four essentials, an incapacity or prohibition created by one of the personal laws should make the marriage null. (6) Special prohibitions arising from rank, colour, solemn vow, or punitive provisions, are not regarded as personal laws operating extra territorium. (7) Dispensation removes a prohibition by nearness of degree of relationship. Whether dispensability should do so is an undecided question. (8) Form includes not only the act or ceremony of marriage but previous publication and notices to relatives where necessary. (9) The same law which regulates the form should also deter- mine what cures defect of form. (s) Clunet, 1890, J. 914; aud see (a-) 1903, J. 93; Lloyd v. Petitjean 1893, J. 412, (1839), 2 Curt. 251. {f) Weiss, iii., 456. (y) So stated per Mr. Justice Philli- (m) 1903, J. 94. more, Paper on Marriage Law, Int. Law (v) 1903, J. 93. Ass., Glasgow Report, 1901, p. 238. M.L. 18 CHAPTER YL personal capacities of husband and wife. Introductory. Personal Capacities Incident to Status of Husband and "Wife. — In the preceding chapters there has been given a general view of the matrimonial law prevailing under the several laws to which this work refers, and of the particular points in which they differ ; and the question has been considered which law ought to decide whether the contract was valid, that is, whether the status of marriage was constituted. The personal powers and capacities which the husband and wife enjoy, as incident to, and as the legal consequences of that status, and their rights in the property of each other, are next to be considered. The personal powers and capacities of the husband and wife, as they exist under the different systems of jurisprudence, and the appropriate law which must determine their nature and extent will be first considered. The rights of the husband and wife in the property real and personal of each other, and the law to which their decision must be referred, will be the subject of a separate enquiry. Arrangement of Subject. — The former subject in the different sys- tems of law is here considered under the heads of (1) the limitations of the wife's capacity, including the incapacity of a woman sole or married to contract an obligation as surety for another person ; (2) the marital power of the husband, or his right to represent his wife, which in certain systems, e.g., theEoman-Dutch and the French, is independent of the rights which he enjoys with respect to her pro- perty and the personal rights and duties of the spouses towards each other ; and (3) the limitation of the marital power. In connection with this last point Burge considered the question how far it is com- petent for the parties, by contract on their marriage, to alter the rights and capacities which by law are incident to the status of husband and wife, and to provide for their termination by mutual separation (a). Their right, under certain restrictions, to secure to (a) Burge, let ed., i., 2.'J5. INTRODUCTORY. 275 themselves by ante-nuptial contract an interest in the property of each other, different from that which the law would have given them, is generally admitted. The power of the husband may be restrained so as to exempt the wife from liabilities which she might otherwise have incurred from its exercise. Thus, as will be seen hereafter, the husband may wholly or partially relinquish the right (h) which, under some Codes, he enjoys of binding his wife by his contracts and his jus mariti in regard to the administration of their estate ; and he may stipulate that he will not fix his domicil in a certain place. But agreements by which the husband divests himself of his power over the person of his wife, or places himself in subjec- tion to her, or stipulates that he would not change his domicil, are deemed by jurists to be illegal and void. The doctrine on this subject is thus stated by Eodenburg : — " Maritalem potestatem quod attinet, licet ea in totum toUi nequeat, quo minus tamen effectus ejus imminui, certave in re coarctari possit, jus non est impedimento. Quemadmodum et ipsum jus naturale, per se firmum licet et immutabile permaneat, in particularibus tamen nonnunquam circumscribitur. Ita vulgata pacti dotalis cautio est, qua maritis vel in totum vel pro parte administratio rerum adimitur, vel facultas inhibetur uxorem obli- gandi, qui tamen sunt hujus ipsius potestatis, seu naturales, seu civiles effectus, qua de re suo loco agam pluribus. Cseterum quod hie libertatis naturalis imminutionem invita queruntur fieri juris- prudentia, non omnino est de nihilo : constat namque de L. Titio rejici conditionem, tanquam libertati inimicam, qua jubetur legata- rius certo in loco commorari perpetuo. Proinde labi eos non putaverim, qui hac promissione districte alligari maritum negent futurum alioquin in ea causa, ut uni terrte tanquam glebes adscriptus cogatur setatem exigere ; scriptores laudat et sequitur (c). Aliud tamen baud dubie de ea promissione dicturus, qua certum aliquem in locum se non migraturum invita uxore spopondit maritus. Ilia quippe promissio omnino libertatem tollit, imminuit duntaxat altera: manente hie marito integrum, extra ilium locum pactis exceptum, sedes coUocare quocunque locorum libuerit " (d). (b) As to French law, see Brunet v. (c) Mev. ad Jus. Lubecens, lib. 1, Rigaiid-Labens (1902), C. Montpellier, tit. 5, art. 10, n. 66. Sirey, 1903, ii., 101, and nn. {d) Eodenburg, de Jure Conj., tit. 4, 18—2 276 PERSONAL CAPACITIES OF HUSBAND AND WIFE. ' The personal effects of marriage in the Eoraan law and canon law may be first briefly mentioned. Roman Law. — In the earlier j^eriod of the Roman law the marital power was as absolute as the pairia potestas. It is not within the province of this enquiry to ascertain at what period, or from what causes, it was relaxed. At the time when the Digest was compiled it had assumed a very different character, resembling in some resjDects but quite different in others, from the authority which has been conferred on the husband by the other Codes of Europe. In the right of the husband to compel the wife, and in the duty of the wife, to take up her residence with him, in enjoining her obedience to his lawful commands, in giving him the power of personal correction, in imposing on him the obligation of pro- tecting his wife and providing for her necessary support and maintenance, and generally in the moral duties which tliey owed to each other, the doctrine of the civil law did not differ from that which has been adopted by the laws of all civilised countries (e) ; but as regards the civil rights and capacities of the husband and c. 1, n. 1, p. 148. See Ab. Wesel, tr. 2, c. 1, p. 81 ; cited by Burge, 1st ed., i., 2;i6, 287. (e) Of. now, as to these general rights and duties, the Civil Codes of Germany (ss. 1353, 1356, 1360, 1361), Italy (arts. 130—133). the Nether- lauds (arts. 158 — 162), Switzerland (arts. 159—161, 169—171), and Spain (arts. 56 — 58, 64). Article 64 of the Spanish Code provides that the wife has a right to enjoy her husband's honours except such as are strictly and exclusively personal, and to retain them so long as she has not contracted a new marriage : cf. Cowley V. Cowley, [1901] A. C. 450. See also Code Civil, arts. 212, 213, 214 ; Baudry-Lacan., ii., pp. 659 et seq., 8. 2162. As to the enforcement of the jyuisBunre maritale manii militari, see ihifl, p. 666, s. 2172. The power of ])er8onal correction or con- finement is not provided for in any of these Codes, and has been expressly negatived in England in Eeg. V. Jackson, [1891] 1 Q. B. 671, as having ever been part of the law. But, semhie, there may be acts on the part of a wife, of proximate approach to misconduct, which would give the husband some right of physical inter- ference with her freedom : S. C. Unreasonable refusal of marital inter- course is not in England a matrimonial offence: Eorster v. Forster (1790), 1 Hagg. C. E. 144, 154. But a wife who refuses intercourse unreasonably cannot allege desertion without reason- able cause by the husband, if, in conse- quence, he refuses to live with her, and she is herself, in such circumstances, guilty of desertion without reasonable cause : Synge I'.Synge, [1900] P. 180 ; affirmed, C. A., [1901] P. 317. As to French law, see X. r. X. (1902), Sirey, 1903, ii., 104. In Mauritius, the Supreme Court may enforce, by writ of munu militari, the return of a wife to the conjugal domicil. See R. S. C, 1903, form 80, for form of writ. KOMAN LAW — CANON LAW. 277 wife, there was a marked distinction between that law and the other systems of jurisprudence. It treated the husband and wife as distinct persons who might have separate estates. It enabled them to make contracts and incur debts in their own names, and permitted the wife to be sued without her husband (/). By the civil law an obligation of a female, whether sole or married, to contract as surety for another was void. This was the effect of the Senatus Consultum Velleianam, " Ne pro alio feminse intercederent." If any suit were brought to enforce the obligation, the woman might by exception successfully resist it. It was, however, competent for her to renounce the benefit of this exception, and its renunciation was generally obtained from her by those who took the security (f/). Besides the Scnatus Consultum Velleianum, which extended to all women, married women were specially incapacitated from becoming sureties for their husbands, a privilege known as the A uthentica si qua muUer : "Si qua mulier crediti instrumento consentiat proprio viro, aut scribat, et propriam substantiam aut seipsam obligatam faciat; jubemus nullatenus hujusmodi valere aut tenere, sive semel sive multoties hujusmodi aliquid pro eadem re fiat ; sive privatum sive publicum sit debitum ; sed ita esse ac si neque scriptum esset : nisi manifesto probetur, quia pecuniae in propriam ipsius mulieris utilitatem expensae sunt " (h). Canon Law. — Effects of Marriage as regards Spouses. — In the canon law, among the personal effects of marriage, so far as the spouses are concerned, the salient points are (a) the equality of the parties and (b) the mutual fulfilment of conjugal duties. As regards the former, the canon law recognised no marital power over property ; the wife could perform juridical acts without the husband's consent, except in the case of restrictions imposed by the dotal regime ; but the husband's supremacy was maintained, e.g., his consent was necessary for her undertaking religious obligations and vows ; he could sue her criminally for her adultery, while she could only sue him in such case civilly, and obtain divortium (/) Burge, 1st ed., i., 202, citing Dig. xvi. 1, ad Senatus Consult. Veil.; Pothier, Pand. i. 6. 2; Cod. vi., 46. 5 ; Cod. iv., tit. 29 ad eund. tit. ; Voet, Cod. v., 12. 12 ; Dig. xlviii. 5. 20 ; Dig. xvi., 1, n. 1 ; Perez, iv., 29, nn. 1, 2, 3. xlvii. 10. 5; Cod. v., 14. 8 ; Cod. iv., 12. (//) Bui-ge, 1st ed., i., 234, citing 1 ; Dig. XXXV. 2. 95 ; Dig. xxxiv. 1. 14. Auth. CoUat. 9, tit. 17, Nov. 134, c. 8. ((/) Burge, 1st ed., i., 234, citing 278 PERSONAL CAPACITIES OF HUSBAND AND WIFE. qaoiid torum ; he could change the matrimonial domicil, which she had to follow, with certain exceptions, and he could compel her to take care of his person and household, and could (in theorjO correct her. It was a [question whether she could give evidence for or against him. As regards the latter, either spouse could compel the other to perform his or her conjugal duties hy resorting to the Ecclesiastical Courts. It was considered that either spouse had a bodily servitude over the other and could bring an action like that to enforce a real right, petitory and possessory. For these it was necessary to prove legitima desjxmsatio, and it was doubtful if copula carnalis was required to be proved. As a consequence of this view of its being a mutual servitude, a vow of continence by one spouse was not allowed without the other's consent. A simple vow of continence could be revoked. Entry into religion was allowed by Justinian to either spouse without the other's consent, but was a ground of divorce. The Church, however, declared for a contrary view, requiring the consent of one spouse to such a step b}' the other. The Eastern Church followed the same view, but allowed it as a cause of divorce (i)- The Western Church also so held, but declared the marriage unaffected, and allowed an action to bring back the spouse, which was not barred by lapse of time ; but a spouse could enter into religion without the other's consent when the other was guilty of adultery (j). Effect of Marriage as regards Children. — Among the effects of marriage as regards children the chief ones are (1) that it makes the children legitimate and (2) that it legitimises them if illegitimate, provided that the parents were capable of making a valid marriage. But if there was an impediment it was necessary to get a positive legitimation, which, however, was and is given with the dispensa- tion from the impediment. But if the impediment were known, a dispensation had to be obtained or the marriage was null and the issue illegitimate (A'). Under the former head, children conceived and born, or at least conceived during lawful marriage, or born in it though previously conceived, are legitimate (/.A), which forms part of the law of (i) Mila.sch, (i.'iO, G(JO— UGl. (/c) Milascli, (347— G48. (/) Esmein, ii., 28. (kk) Burge, ii., 266. ROMAN-DUTCH LAW — PERSONAL EFFECTS OF MARRIAGE. 279 legitimacy. The latter head falls under the law of Legitimation (l) and Illegitimacy (///)• Children may also be born of putative marriages (i.e., marriages null for an impedimentum, dirimens, of which both or one party was not aware). These were not recognised in the civil law, or by the Eastern Church, or the Western Church till the eleventh century. In the next century the canon law recognised them. Besides good faith, a ceremony in facie ecclesia was required, and banns were made necessary by the Fourth Lateran Council (»). This privilege probably originated in the case of marriages subject to imj^ediments of relationship and affinity, and was probably due to the GalHcan Church. Good faith on the part of one spouse was enough, and its effect extended not only to children, but also to parents, who had the property rights which they would have had by a valid marriage preserved to them. SECTION I. EoMAN-DuTCH Law. Personal Effects of Marriage. — The husband was the head of the community of the marriage. If a minor at the time of his mar- riage, he became of age (o). In the ancient customary laws of the Germanic races the age of puberty was the same as the age of majority. Gradually this changed ; the age of majority was removed to a later date, and the above-mentioned rule was established in nearly all the Provinces of the Low Countries (j)). An exception was made in the Province of Friesland (q), while in some of the towns of the Provinces of Holland and in Brabant and Limburg, though guardianship ceased, the husband, who was a minor, was unable to alienate immovable property unless he had obtained the sanction of the Court or release from the Orphan Chamber (/•). The wife's position was similar to that of the husband in so far (?) Burge, ii., 347 et seq. pp. 33, 34, and the authors quoted on {m) Hid., 329 et seq. p. 34 ; ii., pp. 8, 13, 16, 20, 26, 37—38. (n) See ante, p. 18. (, Dec. Fris., ii., 4, clef. 3; and Utrecht and the towns of Zntfen Fock. Andr., Bijdragen, ii., pp. 7, 9, and Groningen ; Fock. Audr., Bijdra- 15, 26, 31, 36—37 ; Ilet Oud Ned. gen, ii., 10, 12, 19, 23—25, 27 ; Het B. Ii., ii., 158—159. Oud Ned. B. B., ii., 159; J. Voet, Ad {(j) Grotius, Introd., i., 5. 23; S. Band., xxiii., 2. 42. van Leeusven, E. H. Il.,i., 6, 7, in fin. ii., 7, 8, par. 2 ; Cens. For., i., 1, 7. 6 J. Voet, Ad Band., xxiii., 2. 42 ; V. d Keessel, Tlies. 8el., Thes. 96 ; J. v. d Linden, Koopniansh. p. 27 ; Fock {t) Bodenburg, Be Jure Conjug.. Prsolim., 186, n. 2. (a) J. v. Sande, Dec. Fris., ii., 4. 3; L. Huber, Ubs. Eeruni Judic, ii., Obs. 130; Fock. Andr., Bijdragen, ii.. Andr., Bijdragen, ii., 31—34 ; Het 8 ; J. Voet, Ad Band., xxiii., 2. 43, Oud Ned. B. E., ii., 159 — 160. quotes this provision of Frisian law as (»•) IIoll. Cons., iii. b.. Cons. 146 an in.stance of a gener.al rule univer- (H. Grot.) ; J. Voet., Ad Band., xxiii., sally observed, which is incorrect. 2. 42. wife's power to bind husband and community. 283 paid with a condictio indehiti. Even if the contract had been entered into during the marriage and payment were made after its dissolution, she could avail herself of this remedy, if she had paid in ignorance of her legal rights. If she had been aware of her legal rights, and nevertheless after dissolution of her marriage had made the payment, she was considered to have ratified the contract after slie had become free from the marital power of her husband. Just as a married woman could not bind herself by entering into a contract without her husband's authority, so she could not, without such authority, dissolve a contractual obligation, e.g., by accepting j)ayment from a debtor or by granting him relief or otherwise {h). Power to Bind Husband and Community. — A married woman was capable of binding herself, her husband and the community to a limited extent under the following conditions : (a) in the case of household debts (c), except where, on the application of the husband, the wife had been forbidden by judicial interdict to incur these on her own account {d) ; (b) if, and in so far as, she — whether of age or still a minor — with her husband's consent publicly carried on a business as merchant, but only with regard to obligations which she had incurred in, for and on behalf of that business {e) ; but the husband could revoke his consent and thus limit his liability as to obligations entered into by his wife after such revocation, provided that he took care that such revocation were known to those who might be likely to enter into contracts with his wife (/) ; (c) if, and in so far as, she or her husband had been enriched by the transac- tion {(})', (d) during her husband's absence a married woman might act under a general power of attorney from her husband, or obtain authority from the Court Qi) ; (e) if a married woman became {h) J. Voet, Ad Pand.,xxiii., 2. 50. and authors quoted ; Fock. Andr.,Het (c) Grotius, Introd., i., 5. 23; J. Oud Ned. B. E., ii., 159. Voet, Ad Paud., xxiii., 2. 46; J, v. (/) J. Voet, AdPand., xxiii., 2.44. Saude, Dec. Fris., ii., 4, def. 3; Fock. (y) J. Voet, Ad Pand., xxiii., 2. 43 ; Andr., Bijdragen, ii., 10, 19, 25, 31 — v. 1. 19; Grotius, Introd., i., 5. v. 1. 34 ; Het Oud Ned. B. P., ii., 159. 23, in fin. ; V. d. Linden, Koopmans- (d) Voet, ibid. handboek, i , 3. 7. (e) Grotius, lutrod., i., 5. 23 ; (//) J. v. Sande, Dec. Fris., ii., 4, Scborer, Notes ad Grot. Introd., Jor. def. 4; J. Voet, Ad Pand., xxiii., 2, cH.; J. Voet, Ad Pand., xxiii., 2. 44, 47. 284 PERSONAL CAPACITIES OF HUSBAND AND WIFE. criminally liable to the payment of a fine, neither her husband nor the community were liable for the payment (i). J. Voet {k) maintains that the incapacity of the married woman to enter into a valid contract with third persons, without her husband's authority, did not prevent her from entering into contracts with her husband himself, and that the marital power exercised by the husband over his wife did not prevent their contracting with each other, provided that such contract did not amount to a donation. Yoet does not give any authority for his statement, and in so far as he does not distinguish whether the wife was still a minor or of age, and whether the husband and wife had been married in community of property, or had excluded the communio honornm, his statement seems too general. Where the husband and wife had been married with an ante-nuptial contract excluding the community of goods and the wife had obtained the sole administration of her own property, then, if she were of age and would have been able to enter into a valid contract but for the want of her husband's authority, the wife in entering, during marriage, into a contract with her husband would seem tacitly to have obtained the required authority to a contract which could not prejudice the husband, as he was party to it himself (/). Such a contract, however, in order to be valid, must not prejudice the rights of third parties. Thus husband and wife were prohibited from making any g,iiis{d()natio)ics inter vivos) to each other staiite inatrimoiio, with a few unimportant exceptions, such as personal ornaments. Any contract which, though apparently non-gratuitous, originated in the design of conferring, or would have the effect of conferring, some advantage on either of the sj)ouses would, on this account, be null and void {m), unless the donation were confirmed by the death of the donor before the donee, without having previously been revoked or there being any other evidence of a change of intention, (/•) J. V. Sande, Dec. Fris., ii., 4, def. ad Grot., lutrod., i., 5. 19 and 24. 4; Scliorer, Notes ad Grot., Tntrod., (m) Grotius, Introd., iii., 2. 9 ; J. i., 5, 23 ; J. Voet, Ad Pand., v., 1. 17. Voet, Ad Pand., xxiv., 1. 8 ; Schorer, (k) J. Voet, Ad Pand., xxiii., 2. 63 ; Notes ad Grot., Introd., iii., 2. 9 ; Eod- xxiv., 1. 8 ; liodfiiburg, De Jure o-ahurg, Ivc. cit., ii., 4. 19 ; Itegtsgel. Conjugiim, ii., 4, 21. Obs., iv., Obs. 39 ; V. d. Keessel, (/) V. d. Berg, Nodorluiids Advys- Thes. Sel., Thes. 486; V. d. Linden, boek, iii., Cons. 177 ; Schorer, Notes Koopmaushandboek, p. 214. wife's testamentary power. 285 and provided that the estate was not insolvent (n). So, one spouse could not, by act inter vivos, renounce a moiety of the qucestus of the community in favour of the other, unless it were confirmed by the testament of the renouncing party (o), for a donation of this kind lapsed upon the death of the donee before the donor unless it was afterwards ratified by the surviving donor or confirmed in his last will(j)). Such donations might be revoked at any time by either donor, unless they were reciprocal donations (^). Revocation was presumed in case of divorce (r). It might be stated that the prohibition extended to and vitiated every transaction, whatever were its form and character, if it appeared that either party was to derive any advantage from it. It existed, notwithstanding there had been a separatio honorum or a mcnsa et toro. These rules did not refer to remuneratory donations, donationes mortis cavsa, or testamentary bequests. Exemption from Arrest. — In consequence of her inability to bind herself, a married woman could not be arrested for debt. If she were a public trader she could not be arrested if she were living with her husband, for in that case he was considered to have consented to her incurring liabilities, as a single dissent on his part would be sufficient to stop his wife from trading. But if the husband were absent, the wife, if a public trader, was liable to be arrested, under certain conditions (s). Testamentary Power. — A married woman could make her own will without the assistance of her husband, and she could make any dispositions in it which she liked regarding her own property or her half of the property in community (0- This privilege, however, did not extend to donationes mortis causa, as they were in the nature of contracts and not of dispositions by will (a). The same rule applied with regard to donations in general (/j). {u) Grotius, Introcl,, iii., 2. 9 ; J. (s) J. Voet, Ad Paiid., ii., 4. .S6. Voet, Ad Pand., xxiv., 1. 3, 4, 6; {t) Grotius, lutrod., i., 5. 25; Schorer, Notes ad Grot. In trod., iii., Schorer, Notes ad Grot. Introd., loc. 2, 9. cit. ; J. V. Sande, Dec. Fris., ii., 4, (o) J. Voet, Ad Paud., xxiv., 1. 13 ; def. 4; Groenewegen, Leg. Abr., Eodenburg, loc. cit., ii., 4. 20. Cod. v., 12. 25 ; J. Voet, Ad Pand., ( //) J. Voet, Ad Pand., xxiv., 1. 7. xxviii., 1, 38. {q) Schorer, Notes ad Grot. Introd., (") J. v. Saude, Dec. Fris., ii., 4; toe. cit.; Holl. Cons, ii.. Cons. 118; dei.iinjin. iv.. Cons. 349. (?)) HoU. Cons., i., Cons. 129; (?•) J. Voet, Ad Pand., xxiv., 1.6. J. Voet, Ad Pand., xxxix., 5, 9. 286 PERSONAL CAPACITIES OF HUSBAND AND WIFE. Rights of Succession. — Again, the wife could not adiate an inheritance without her husband's authority nor repudiate it (c). Suretyship. — Woman's Incapacity under Senatus Consultum Vel- leianum. — A woman was, as a rule, incompetent to be a surety (d). The Senatus Consultum J'elleianum, " Ne pro alio feminae inter- cederent" (e), forbade any woman — whether married or unmarried — to become a surety for the debt of another. This principle was extended to make illegal any intervention on a woman's part alienam ohligationcm in se suscipere, viz. : to undertake any obligation which — economically sj)eaking— did not concern her, but a third person {e.g., the liberation of a debtor by stipulating a novation, or giving a pledge, or the undertaking of a loan in the interest of a third party). If, nevertheless, a woman entered into such a contract in contravention of this Soiatus Consultum, the contract was not absolutely void, but, if she were sued upon it, she could raise an exception. If she paid in error, she could reclaim the sum of money so paid. This made a transaction of suretyship entered into by a woman " relatively " void, that is to say the transaction was void, if the woman relied upon the privilege conferred upon her by the Senatus Consultum, and claimed that the transaction should be considered void. Where Privilege could he Pleaded. — If she were sued upon a contract of suretyship, the exceptio ex Senatus Consulto Yelleiano which she could resort to at any stage of the proceedings, even when execution was levied, was available not only to her but also to a third person who had become surety at her request or on her behalf. If, in ignorance of this privilege (hene/k-ium), a woman had fulfilled the obligation resting upon her, she could reclaim the money with a condictio (not a rei vindicatio, as the creditor did not obtain ownership). But if she had paid knowingly, she could not do so, because the prohibition against her becoming liable as surety did not include a prohibition against her paying the debt of a third party. The creditor was entitled to an actio restitoria or rescissoria against the debtor who had been freed from his liability through the woman's intervention, or who had b}' such intervention been (r) Oroenewegen, Leg. Abr., Dig. (c?) Grotius, Introd., iii., 3, 14 andlo. xxiv., 3. 58; J. Voet, Ad Pand., xxix., (f) Dig. xvi., 1 Ad Sen. Yell. ; 2, 9. Cod. iv., 29, Ad Sen. Yell. WOMAN S PRIVILEGE OF INCAPACITY FOR SURETYSHIP. 287 spared from entering into an obligation (in case of a so-called tacita intercessio). Exceptions. — The woman could not avail herself of the privilege in the following cases, viz : — (a) If she had deceived the creditor. " Infirmitas enim feminarum, non calliditas auxilium demeruit " {/) ; (b) If the creditor did not know that she had become a surety, e.g., in case of a tacita intercessio, or if the woman acted through a third party as a dummy. " Immo tunc locus est senatus consuUo, cum scit creditor eam intercedere " (g) ; (c) If the creditor were a minor and the debtor for whom she became a surety were at the same time a bankrupt, as in that case her interest clashed with that of a minor, and the interest of the latter had the preference (/<) ; (d) If the suretyship had been entered into with regard to the gift of a dos, for the same reason of conflicting privileged interests as in (c) ; (e) If the woman had renewed the contract within a period of two years. Justinian's Legislation. — Justinian confirmed the heneficium ex Senatus Cunsidto Velleiano by two enactments : — (a) It was required that every suretyship entered into by a woman should be entered into by a documentum publicum signed by three witnesses (i). The meaning of this — as explained by the Glossator Martinus — was, that, if the intercessio had not taken place by such deed, it was ipso jure void in any case, but that, if it had taken place by such documentiim j^uhlicum, it was relatively void in general, and binding only in the above-mentioned exceptional cases. To this enactment there was one exception. The form of intercessio was of no consequence if the woman had benefited by her becoming a suret3\ The intercessio in that case, in reality, ceased to be a suretyship; it was an undertaking of a direct obligation, and was binding upon her without the observation of any formality (k). (b) It was enacted that a married woman who had signed an acknowledgment of debt by her husband, or bound herself or her property as a surety for her husband's debts, was not bound by it, whether such a contract were entered into by documentiim lyuhlicum (/) Dig. xvi., 1, 2 lex par. 3 (Ulp.). of Cod. iv., 29, 22, in Kotze's trausla- {(j) Dig. xvi., 1. 12 (Paulus). tion of Van Leeuwen's E. H. E., ii., (A) Dig. iv., 4. 12. p. 38 in notes, and in appendix, on (t) Cod. iv., 29, 23 (2). p. 615. \h) Cod. iv., 29, 22. Cf. the text 288 PERSONAL CAPACITIES OF HUSBAND AND WIFE. or by private act, and whether it was entered into once or several times (I). The transaction was absokitely void in any case, and the exceptions of the Senahis Consultum Velleianum were of no avail. This defence was called the Authenticasl qua niulier. Practice and theory have extended the heneficium ex Authentica si qua mulier to all intercessions of a married woman on behalf or for the benefit of her husband. Modification of Roman Law in the Middle Ages. — In the Middle Ages, by custom, three modifications were introduced of the above rules, viz. : — (a) A woman carrying on business, a woman-trader, was always bound by becoming surety for a third party, even if such contract were not made by public instrument, and even if she did it for the benefit of her husband ; (b) In canon law the intercessio of a woman an oath was always binding ; (c) Women could renounce the benefit of the Senatus Consultum Velleianum and of the Authentica. This right of renunciation had already been admitted in certain cases during Justinian's time. Subsequently, it obtained general acceptance by custom, provided that the renunciation was made in the same public document which contained the contract of intercessio. A renunciation not contained in such public document was invalid. It also became customary that the judge or notary public who framed the document which was to contain the renunciation should explain to the woman the nature of the privilege before she renounced it. Roman-Dutch Law. — In the Dutch Provinces these rules were recognised, though not in all provinces in an equal degree. In Holland the principal rules of Justinian's Code were readily adopted, and the exceptions were accepted and even extended (/»,). The privilege had to be claimed in the pleadings, but if this were omitted it could be raised at any moment, and even opposed to the execution of the judgment (»)• Exceptions to Privilege. — In the following cases a woman could not rely on the heneficium ex Senatus Consulto Velleiano nor {I) Nov. 1;M, c. S. 495; V. d. Liudeii, Koopmanshandb. , (?/i) Gi'otiuB, Iiitrod., iii., 3. 14 ; i., 14, 10, on pp. 135, VMx llubtr, llcdeiid. liogtHgel., i., 3. 27, {it) Holl. Cons., i.. Cons. 292; pare. 4 — 12; Van I.ecuwen, 1?. H. E., Schoier, Notes ad Grot. Introd., iii., iv., 4. 2; J. Voet, Ad. Pand., xvi., 3. 14. 1.1; V. d. Keeseel, Thes. Sel., Thes. RENUNCIATION OF PRIVILEGE FORM. 289 on that of the Authentka (o), viz. : — (a) In case of I'raiul committed by her (j)); (b) if she had benefited by her actions, to the extent of such benefit (7); (c) if she liad become surety for a debt owed by a person wlio was her own creditor (r); (d)in the ease of a married "woman, if she had become suretyfor her husband's debts in order to obtain his release from prison (s): (e) in the case of a woman who was a pubHc trader (f); (f) if she had succeeded as heir to the prin- cipal debtor, because the debt then ))ecame one of her own ; (g) if, after a lapse of two years, she had confirmed her suretyship by a renewed promise (a) ; (h) if in her will she expressed the wish that her heirs should pay what she owes. " Si miilicr quod ex causa ^fidrjussioiiis debet, in tcstameuto Jieredibus solrcnduni ia- jnngat " {h) ; (i) if she had renounced the privilege (r). Reniiiiciatioii of Privilege. — Form. — The renunciation, according to some authorities, had to be made in a public instrument ; according to others it could be nxade in a I3rivate document. Groenewegen {d) maintains that, according to the customs of France and of Holland, a public instrument was not required for renunciation, but that it could be made in the woman's own hand- writing (proprio chirntjrapdio) vel aliunde. Schorer, in his notes, quotes this passage without comment (e). Voet (f) similarly quotes Groenewegen, but previously mentions that French law did not recognise the henefieium ex Senatus ConsuUo Velleiano at all. Van der Linden ((/), in a note to his edition of Pothier, observes : {(.) Huber, Ilecleud. EegtsgeL, i., 3, [h) Y. d. Keesscl, Thes. SeL, Thes. 2~, IG ; Kersteiuan, Eeclitsgel., 495; U. Huber, Hedeud. Eegtsgel., Woordeiiboek, in. rocf " Beneficieii " ; i., 3, 27, 17, who adds four more J. Yoet, Ad Paud., xvi., 1, 9 — 11. cases taken from the civil law ; V. {p) Grotius, Introd., iii., .'J, 15; Sande, Decis. Fris., iii., 11, def. 7; Schorer, Notes ad Grot. Introd., iii., .'J, IIoll. Cons, ii.. Cons. ."JH ; Y. Sande, 15, Jo. i., 7, 6; J. Yoet, Ad Pand., Dec. Fris., iii., 11, def. ;J. xvi., 1, 11. ((•) Grotius, Introd., iii., 3, l-S ; (2) Grotius, Introd., iii., 3, 1(). Schorer, Notes ad Grot. Introd., (»•) Ibid. loc. (it.; Y. d. Keessel, Thes. SeL, (s) HoU. Cons., voL v., Cons. ult. Thes. 496; Yan Leeuwen, E. H. E., pag. ult.; J. A^)et., xvi., 1, 10; ii., 4, 2 ; J. Yoet, Ad. Pand., xvi., 1, Neostadius, De Pactis Antenuptiali- 9 and 10. bus. Obs., xviii., 6. {), as according to Roman-Dutch law husband and wife were married in community of property, and this benc/icium could only have effect if the marital power had so far been restricted by an ante- nuptial contract that the wife would not be liable for the debts of {h) Thes. Sel., Thes. 496. (w) Atl Pand., xvi., 1, i>tjiu. (/) Dec. Fris., iii., 11, tlof. 2. {u) ('ens. Foi'., i., Bk. iv., 17, 4. (/••) Loc. rit., def. 5 — 6. {<>) lluber, Iledend. Eeclitsgcl, i.,. (/) Hodend. Recbtsgel., i., ."J, 27, ii, 27, 23. 19—24. (/') Grotius, lutrud., iii., ;i, 1!'. husband's ^FARITAL rOWER — ADMINISTRATION. 291 her husband. Even then, according to Groenewegen, it ^Yaf^ necessary that the Roman law should have been specially referred to in order to make the hcncjiciuni e.v Authentica operative (f/). The privilege did not operate in the case of a woman who carried on business publicly ; nor if she became a party to a bill of exchange or pledged her credit by accepting one (r). The wife could renounce the heneficlum ex Authentica if the- renunciation were made in express terms and in a special document. The renunciation of the Beneficium ex Senatus ConsuUo Velleiano did not of itself include a renunciation of the heneficlum ex Authentica qua vuiUer (s). II. Husband's Marital Power : Representation and Administration of Wife's Property. — The limited capacity of the wife to act was counter-balanced by the authority of her husband (t). His- authority over his wife manifested itself in two ways. In the first place the husband represented his wife or assisted her in law and — if necessary — in legal transactions. He appeared for her in Court (a). In the second place he administered her property. If married in community of goods, the husband had the sole and exclusive adminis- tration of the common property. If the wife had kept her own property separate and the community of goods had been excluded by ante-nuptial contract, the husband, unless special provision had been made to the contrary, administered his wife's property, and, in doing so, was entitled to alienate her movable property (h). Powers of Administration. — In administering the property the husband was entitled to collect the fruit and income thereof, the rents and profits, and dispose of them at will. If his wife were the proprietor of a jus i)atronatus, the presentation was made by the husband ; for the presentation was the frucfus, and the wife could not make it without his consent (c). {q) Groenewegen, Leg. Abr., Cod. («) Fock. Andr., Bijdragen, ii., 5,. iv., 29. 15. 10, 12, 14, 16, 18, 21, 30. (r) Schorer, Notes ad Grot. lutrod., (/<) Fock. Andr., Bijdragen, ii., (>, iii., 3, 18. 12, 18, 21, 30, 36; Het Oud Ned. ]i (s) Grotius, Introd., iii., 3, 19 ; E., ii., 160. J. Voet, Ad Pand., xvi., 1, 10. (c) J. v. Sande, Dec. Fris., ii., 4, (i) Groenewegen, Leg. Abr., Dig., def. 2 ; Eodenburg, de Jure Conj., i.,. xxiv., 3, 58 ; J. Voet, AdPand., xxix., 2, de Marit. Potest, in Contr , 4; 2, 9. J. Yoet, Ad Pand., xxiii., 2, 59. 19—2 292 PERSONAL CAPACITIES OF HUSBAND AND WIFE. The husband's administration of his wife's property did not — in most of the Provinces — involve the right to aUenate her immovable propert}^ without her consent (d). Onl}'-, in the Provinces of Holland and Brabant, the husband's power was unlimited in this respect and entitled him to alienate and encumber his wife's estate and charge it with servitudes without her consent (/'), and even against her will( /'). The husband's administration embraced all acts of an obligatory nature. The husband bound the common property and that of his wife by all contracts entered into by him so that not only during marriage the common property or the wife's property could be attached for debts incurred by the husband, but even after the dis- solution of the marriage recourse might be had against the wife for half of the debts incurred by her husband, if she had been married in community of property, or for the whole of them, if they had been incurred by the husband on behalf of the wife's estate (f/). The power also included obligations which the husband incurred as surety, or in his administration as a guardian of minors (It). It also included donations made by the husband stante matrimonio, unless it appeared that the gifts had been made for the purpose of defrauding his wife or his or her heirs, or if there were not any cause for such liberality. A fraudulent purpose which would invalidate the husband's gift, was considered to exist if the gift had been made at a time when, judging from the delicate state of the wife's health, her death might be shortly expected {i). Power to Bind Matrimonial Property. — It was not only the husband's acts which were binding upon the matrimonial property. {d) J. V. Sande, Dec. Fris., ii., 4, (/) Groenewegen, Leg. Abr., Inst., (lef. 2 ; Schorer, Notes ad Grot. ii., 8, 5. Introd., ii., 11, 17 ; L. Goris., Advers. (y) Grotius, Iiitrod., i., o, 2'.i ; Tract., i., 5, 6 — 8 ; J. Voet, AdPand., Groenewegen, Leg. Abr., Cod. iv., 12, xxiii., v., 7 ; Fock. Andr., BIjdragen, 1 ; Neostadins, Pact. Anten., Obs. v.; ii., 6, 9, 12, 18, 22, 31, 30; Uot Oiid J. Voet, Ad Pand., xxiii., 2, o'l; Fock. Ned. ]}. E., ii., 100. Andr., Bijdragen, ii., pp. IS, 21. (e) Grotius, Introd., i., 5, 22; (A) J. Voet, Ad Pand., xxiii., 2, 53 ; Oroenewegen, Leg. Abr., Inst., ii., 8, and authors quoted; \. d. Keessel, 6 ; Dig., xxiii., 4, lex nit.; IIoll. Cons. Thes. Sel., Thes. 93. iii., b. Cons. 213 (313) ; v.. Cons. 132 ; (?) Scjnieron, do Jure Novorcaruin, Grotius, Obs., 1, Obs. 12; Boel- cap. iv. ; J. A^jet, Ad Pand., xxiii., Loenius, Cone, c, 103; Fock. Andr., 2, 54; A. Wesel, doDanini inter Coiij. Bijdragori, ii., 30, 36; V. d. Keessel, Com, Tr. ii., 3, 48; V. d. Keessel, Thee. Sei.. The.«. 92; J. Voet, Ad Thes. Sel., Thes. 93. Pand., xxiii., o, 7. LIMITATION OF THE MARITAL POWER. 293 The consequences of his omissions had to he home equally hy the common property, and the husband could not be made solely liable for omissions whereby either the community or his wife had been deprived of some profit. As he could use his own discretion in acquiring, so he could use it in not acquiring property. The husband could adiate an inheritance which had devolved upon his wife, even against her will, or he might refuse to adiate, and repudiate a succession to which she had become entitled (IS). He could obtain a distribution of the estate to which his wife had succeeded, or effect a compromise, or cause a third person to acquire a title in her estate by usucajno, or even forfeit the estate. For none of these acts was the husband accountable or chargeable to his ■wife or her heirs, unless it could be proved that he had acted fraudulently {I). Wife's Liability for Husband's Torts. — The wife became equally bound for the husband's torts, and after dissolution of the marriage she could be held liable for half the damages for which the husband had become liable on that account (m). He could not, however, impose upon his wife any liability for the consequences of any criminal acts committed by him, and any fines which he was con- demned to pa3% had to be paid out of his share of the common property exclusively (ii). If the husband's property were confiscated, bis wife's pecuniary interests remained altogether unaffected by it (o). Personal Authority. — As regards personal authority, the husband had the right of moderate punishment {nwdica castUjalio) over his wife(j)). III. Limitation of the Marital Power. — The extensive power of the husband regarding the administration of the property which husband and wife had in common, and of the wife's property, might be limited in more than one respect, either before or during the ih) Groenewegeii, Leg. Abr., Dig., iv., 12,3; Y. d. Keessel, Thes. Sel., xxiv., 3, 58; J. Voet, AdPand.,xxix., Thes. 9.3. 2, 9; xxiii., 2, 07; Holl. Cons, v., {o) Grotius, Introd., i., 5, 23; Cons. ILS. Scborer, Notes ad Gi'ot. Introd., i., o, (Z) Eodenburg, de Potest. .Uieii., 23; Groenewegeu, Log. Abr., Cod. iv., iii., 2, 8— lOe?; seip ; J. Voet, AdPand., 12, 3; Y. d. Keessel, Tbes. Sel., Thes. xxiii., 2, 00, o~i. 'Ob; J. Yoet, Ad Pand., xxiii., 2, oG. (m) Groenewegeu, Leg. Abr., Cod. {p) Fock. Audi-., Bijdragen, ii., iv., 12, 2; J. Yoet, Ad Pand., xxiii., 38—40; Het Cud Ned. B. E., ii., 2, 56. 160—164. (?i) Groenewegeu, Leg. Abr., Cod. 294 PERSONAL CAPACITIES OF HUSBAND AND WIFE. marriage, while even after its dissolution the wife had an opportunity to avert any disastrous consequences of maladministration of the community by her husband. Marital Power Compared with Guardianship. — The possession of this right by a married woman, derived from her peculiar •character as the inferior inter ixires, marks the difference between the marital power and the guardianship of minors already referred to, and which is illustrated by the following examples. Minors and persons under curatorship could not exclude or limit the powers of those who were placed over them, but their protection consisted in the right which they enjoyed of obtaining damages from their guardians, after the guardianship had come to an end, for negligence and maladministration of their property and interests. Minors and persons under curatorshij) had a tacit legal hypothec on the property of their guardians {q). The wife had no such real security against her husl)and. Guardians and curators were bound at the end of the guardian- ship and curatorship to give an account of their administration of the ward's property, and in case of loss through negligence on their part were bound to indemnify the minor or ward against such loss (r). Far from being entitled to such an account, and indemnification from her husband, the wife was liable for the husband's obligations and bound by the contracts entered into by him (s). During their guardianship the guardians and curators could not alienate immovable property belonging to their wards with- out having previously obtained consent from the Court {t). They were also precluded from entering into contracts personally with their wards {(). On the other hand, the husband could alienate or encumber, at will, movable or immovable property (in the Provinces of Holland and Brabant at least, and in the other Provinces he could alienate and encumber immovables with his wife's consent). If community of property had been excluded by ante-nuptial contract and the wife had reserved to herself the free administration of her own property, the husband and wife (4. pp. 46—60 ; Xotze's Translation of (//) This is wliat Bugnyon states van Leeuwen, R. H. E., iv., 4, 2, notes (cf. van Leeuwen by Kotz^, Appendix and Appendix; Natban, Common Law to vol. ii., -p. 601) : " Une femme ne of South Africa, ii., par. 983, jo. 773; se pourrait aucunement obliger pour Maasdorp, Institutes of Cape Law, iii., le f aict d'autrui . . . laquelle soleunite cb. 30, pp. 347 — 355; Morice, EngHsb ne fut jamais receue ny approuvee en and Soman-Dutcb Law, 2nd ed., France." Li France women were pp. 13, 14; Auret r. Hind, 4 E. T). C. considered capable of looking after 283. themselves. Cf. J. Yoet, Ad Pand. (/.•) McAlister v. Eaw & Co. (1885), 6 xvi., 1, 9. "In Gallia nuUus hujus N. L. E., N. S. 10. senatusconsulti usus est dum illic 298 PERSONAL CAPACITIES OF HUSBAND AND WIFE. proxy, provided that the woman who so renounces, understands what she is doing (0, and that the document constituting the proxy con- tains an explicit authority for such renunciation (m). The renunciation need not necessarily he made in a notarial document, and is considered as valid if contained in a written document of any kind. A woman can hecome a surety for a third person hy any document whatsoever, provided that she renounces in that same document the benefits of the Senatus Consultum VcUeianuiii or of the AutJicntica, or of both/ as the case may be, and does so in exi^ress words (»)• The privilege should l)e pleaded, but it has been held in Cape Colony that — even if not pleaded — the Court ought to take judicial notice of it (<>). 2. Limitation of Husband's Marital Power. — In South Africa it is a favoured expression that a woman can, before marriage, bj' ante- nuptial contract " exclude " the marital power of her husband. This expression — though incorrect, because the married woman remains in the position of a minor even after having reserved the widest powers to herself l)y ante-nuptial contract as far as her property and its management is concerned (j>) — shows that the marital power has now ceased to have much significance beyond the administration of the marriage property and the rights attached thereto. Ceylon. — Ordinance No. 15 of 1876, amended l)y Ordinance Xo. 2 of 1889, regulates the matrimonial rights of married persons with regard to property. Although this Ordinance leaves the personal incapacity of the married woman and the husband's marital power untouched, it removes the disability of husband and wife, whether married before or after the proclamation of the Ordinance (q), and notwithstanding the existence of any community of goods between (/) Heydeuiych v. Frame, 1 5 C. T. E. Lawr. Eep. 344. 99. {2>) Morice, English and Eomau- (w)Mackellar i'.Boud(1884),9A. C. Dutch Law, p. 11. Even in Natal, 715; Xatal Bank r. Bond (1884), 53 whereby Law No. 22 of 1 803 (amended L. J. P. C. 97. by Laws 17 of 1871 and 14 of 18.S2), (;/) Whitnall v. Goldschmidt, 3 the exclusion of community of ]>ro- E. D. < ". 314; (3uk r. Lumsden, 3 perty has become the statutory rule, S. C. E. 144 ; Stride v. Wejiener (1903), unless expressly upheld by ante-nuptial T. II. 3S3 ; S. A. L. J., xxi. (1904), contract. CA. (v) Juno 29th, 1.S77. (o) Makadi '•. do Kock, (iriq., 1 COLONIES LIMITATION OB^ HUSBAND ,S .MARITAL I'ONA'ER. 299 them, to grant to each other donations during the existence of the marriage, whether by way of vohmtary gift or by way of settlement, subject to the rights of creditors of either of them (r). At the same time it provides that any married woman, indepen- dent of the date of her marriage, shall be able to effect a policy of insurance upon her own life or the life of her husband for her separate use (s), and that the husl)and shall be able to insure his own life for the benefit of his wife, or his wife and children, or any of them (t). A married woman remains incapable of binding herself or of validly disposing of, or dealing with, her own property without the consent of her husband, but it is specially provided that in case she requires to deal with any property of her own, and if — (a) the wife shall be deserted by her husband ; (b) the wife shall be separated from her husband by mutual consent ; (c) the husband shall have lain in prison under the sentence or order of any competent Court for a period not exceeding two years ; (d) the husband shall be a lunatic or idiot ; (e) the husband's place of abode shall be unknown ; (f) the husband's consent is unreasonably withheld ; (g) the interest of the wife or children of the marriage require that the husband's consent be dispensed with — it ishall be lawful for the wife to apply to the Court of the District in which she resides or the property is situate, for an order enabling her to dispense with her husband's consent for such disposing of, or dealing with her own property (»)• Such consent for dealing with, or disposing of, her property shall not be required in case hus])and and wife are separated a mensa ct torn by a decree of a competent Court (»)• The Ordinance also provides that in case any questions or disputes arise between husband and wife relative to any separate property of the wife, the District Court shall be the proper Court to settle such dispute ; and that either party shall be able — unassisted by the other — to apply by summons to such Court for settlement of the dispute (r). British Guiana. — In British Guiana, until the year 1904, the above-mentioned rules applied to all marriages. By Ordinance 12 of 1904 (May 21st, 1904), amended by Ordinance 2 of 1905, the matrimonial rights of persons married after the commencement of (r) Art. 13. (k) Art. 12. («) Art, 17. [r] Art. IG. [t) Art. IS. 300 PERSONAL CAPACITIES OF HUSBAND AND WIFE. the Ordinance, with regard to property, were regulated on the basis, that in future marriages no community of goods should exist between husband and wife. At the same time all restrictions on a married woman's capacity were removed, and the husband's marital power entirely abolished. The married woman is by that Ordinance placed on the same footing as if she were afcmnie sole. Though the Ordinance provides that the respective matrimonial rights of any husband and wife with regard to property arising under and by virtue of any marriage solemnised before the com- mencement of the Ordinance shall be regulated by the law which would have been applicable if the Ordinance had not passed (x), yet the removal of the married woman's incapacity by the Ordinance must be considered to apply to all married women independent of the date of their marriage, in so far as this does not come into conflict with the marriage regime which prevailed at the time of the marriage, and this is especially so where persons, married before the commencement of the Ordinance, excluded the community of property between them by ante-nuptial contract. In some instances the Ordinance removes all restrictions specifically. Thus it provides that the Seiiatus Consultuui I'elleianion and the privilege of the Autheniica si qua innlier shall no longer apply or have any effect in the Colony (u). It may thus be said that the Eoman-Dutch common law rules continue to apply to all marriages solemnised before the com- mencement of Ordinance No. 12 of 1904, in so far as they have not been expressly or impliedly repealed by that Ordinance. SECTION II. Laws of France, Quebec, St. Lucia, Maueitius and Seychelles, THE Channel Islands, and the Codes of Belgium, Italy, Spain, Germany and Switzerland. As the law which prevails in Quebec and St. Lucia is derived from the coiitume of Paris but is now codified (z) and that in Mauritius and Seychelles is the Code Civil, it will be useful to consider them together with the law of France. [a-) Art. '■'). St. Liicia, arts. 143—154, and both ly) Art. 25. these reproduce -with dillorcuces of (z) Civil Code of Lower Canada, arts. detail arts. 212—220 of the present 17:5 — 184, correspond to Civil Code, Trench Code Civil. AVIFE's capacity AUTHORISATION. 301 I. Limitation of Wife's Capacity — Authorisation Necessary. — Law of France {a). — By the coutnme of Paris, independently of the interest Avhich the husband acquired in the wife's property and of his right to the exchisive administration of it, as well as of that which was in community, the wife became by her marriage com- pletely dependent on him. The maxim of the cuHtu))ie of Avi-as (aa), feme mariee n'a roidoir, nl noidoir, prevailed in that of Paris. The wife's civil incapacity was absolute except so far as it was removed by the authority which her husband might confer on her. The principal distinction between the contnnie of Paris and the Civil Codes of Lower Canada and St. Lucia and tho Code Civil on the one hand, and the common law of England on the other, consists in the nature of that authority and the manner in which it must be granted in order to render her acts valid. The incapacity of the wife to deal with propert}' or to bind herself or her husband by any contract, or to sue or be sued unless she had obtained his authority, and the species of authority which is required, will he, found in the following articles of the Coutume. Coutume of Paris. — " La femme mariee ne pent vendre, aliener, ni hypothequer ses heritages, sans I'authorite et consentement expres de son mary. Et si elle fait aucun contract, sans I'authorite et consentement de son dit mary, tel contract est nul, tant pour le regard d'elle, que son dit mary ; et n'en pent etre poursuivie, ny ses heritiers, apres le deces de son dit mary " {h). " Femme ne pent ester en jugement sans le consentement de son mari, si elle n'est authorisee ou separee par justice, et la dite separation executee " (c). " line femme mariee ne se pent obliger sans le consentement de son mari, si elle n'est separee, par effet, ou marchande publique ; auquel cas etant marchande publique, elle s'oblige et son mary touchant le fait et dependances de la dite marchandise publique " (d). (a) Burge, 1st etl., i., 212. _2""'5S^"c« maritah iu France, see {aa) Art. x. Baudiy-Lacan., ii., -p. 69, s. 1410, and (b) Art. ccxxiii. ; Diipless., tit. x., p. 670, s. 2175. liv. 1, c. iv. In the ^xfys (hi droit (c) Dupless., tit. x., liv. 1, c. 4, art. ec7-it the married woman preserved, as ocxxiv. regards her paraphernal property, the (d) Dupless., tit. x., liv. 1, c. 4, art. independence secured to her by the ccxxxiv. civil law. As to the history of the 302 PERSONAL CAPACITIES OF HUSBAND AND WIFE. Not only was the Avife incapable of selling, alienating, or hypothecating her real estate, of contracting any obligation, or of suing or being sued without the authority of her husband, but under an Ordinance of 1731 she could not, without his authority^ take a gift from any person (e). Law of diiebec. — The Code of Lower Canada provides : " A wife, even when not common as to properly, cannot give nor accept, alienate nor dispose of property, inter vivos, nor otherwise enter into contracts or obligations, unless her husband becomes a party to the deed or gives his consent in writing" (/). A wife may be separate as to property, and that either in consequence of a clause in the ante-nuptial marriage contract, or by a judgment of the Court during the marriage. The result is the same. "She may do and make alone all acts and contracts connected with the administration of her property " (f/). The language of this last provision (art. 1318) as to the effect of a judicial separation seems, at first sight, wider than the one already cited (art. 177). But it has been held that the wife's freedom, even when separated ])y judgment, does not extend bej'ond acts of administration (li). Code Civil. — Under the ^Civil Code (i) a married woman, even if she is not under the rhjimc of community, or if she is separated in goods, cannot grant, alienate, hypothecate, or acquire, by gratuitous or onerous title, unless her husband either concurs in the act or consents to it in writing (/.). This enumeration of disqualifications is not exhaustive. Incapacity is the rule (/), and it extends, speaking generally, to all juridical acts of whatever character and however advantageous to the married woman they may appear to be (m). ((') Ord. 1731, art. 9; Code Civil, Baiidiy-Lacautineric, Courtois ct art. 934. Surville, Contrat de Manage, 2nd ed., (,/') C. C. of L.C., art. 177. The v. 3, n. 1498. article adds "saving the provisions (i) See arts. 217 — 224 ; and cf. art. contained in the Act 2b Vict. c. 06." 1124. This refers merely to a power given to {1^) Art. 217. married women to make deposits in a (/) Art. 1124. savings bank. {m) Aubry etEau, v., p. 141, n. 17, (v) C. C. of L.C., arts. 177, 210, 131.S. p. 142, n. 18 ; Eandry-Lacant., ii., GS5, (A) Lamontagne v. Lamontagne s. 2203, pp. G8G — 688, ss. 2204 — 2207. (1890), M. L. Pv. 7 S. C. 162. Cf. AVIFES SURETYSHIP- — KSTEIl KX JUUEMEyT. 303 Similarly under the law of Quebec, the incapacity of a wife applies not merely to contracts, but to any other acts by which she might incur obligations or liabilities. She cannot, therefore, accept a succession or act as agent, or in any other situation which would subject her to personal liability, unless she has obtained his authority' (?/). Suretyship. — The obligation of suretyship under the Senati(.''unu(i)i and the AiitJtcntica si qua mulier was at first also excluded from a wife's capacity; but the Senattis Considtum Yelleianuni was abolished by the edict of Henry lY., of 1606. But in Normandy, until its eoutume was abrogated by the Code Civil, not only did it prevail in full force, but it could not be renounced (o). Under the Code Civil it has not been recognised, and art. 1431 assumes that the wife may be bound as a security for her husband It provides that the wife who becomes bound jointly and severally with her husband in respect of affairs in the communit}^ or of her husband, is not deemed bound with regard to the latter, except as' security ; she may be indemnified against the obligation which she has contracted. There are similar provisions in the Code of Belgium {p). Acts without Authorisation Null. — The acts of the wife, without the autorimtion maritale, are not merely voidable, but absolutely null and void ; and consequently no proceeding is required to set them aside (r/). By the law of Quebec " the want of authorisation of the husband, where it is necessary, constitutes a cause of nullity which nothing can cover, and which may be taken advantage of by all those who have an existing and actual interest in doing so " (r). "Ester en Jugement." — Law of Quebec. — "A wife cannot appear in judicial proceedings without her husband or his authorisation,, even if she be a public trader or not common as to property ; nor can she, when separate as to property, except in matters of simple administration." If the husband be interdicted or absent or refuse {n) Pothier, Traite de la Puis, cki 1, 8; Merville, Cout. Nonnand. 505, Mari, 8. o3 ; C. C. of L.C., arts. 643, 513; 2 Basnage, art. cccxci. ITOS. Q)) Alt. 1431. («) Burge, 1st ed., i., 235, citing () Art. 1096. (/i) Pothier, Puiss. du Mari, s. 50 ; {q) Arts. 226, 905. The powers, Aubry et Rau, v., 142, s. 472, n. 20 ; above enumerated, have been extended Laurent, D. C. F., iii., 133, s. 100. by special legislation, e.g., a law of (t) Demolombe, iv., 210, s. 176. July 20th, 1895, art. 16, entitles a (k) Aubry et Eau, ad lac. cit., p. 143, married woman to invest money in the u. 23 ; Demolombe, iv., 211, s. 177. savings banks (caisse cV eparfjne) with- (?) Laurent, iii., 134, s. 101. out her husband's authorisation. (■m) Pothier, acZ Zoc. cit., s. 52 ; Aubry (a) Code Civil, art. 337. et Eau, ad loc. cit., p. 143, n. 24 ; {h) Art. 546. Society Generale v. Lasserre (1885), (<) Arts. 112 et seq. Dalloz, 1886, i., 147. ('0 ^'t. 2219. M.L. 20 306 PERSONAL CAPACITIES OF HUSBAND AND WIFE. circumstances which furnish proof of its having been really given before the marriage (e) . Under the Code Civil and Law of Guebec. — The Code Civil and the Civil Code of Lower Canada ordain that the estate in community shall not be charged with personal debts contracted by the wife before marriage, except so far as they result from an authentic act anterior to marriage, or as they have received before that event a certain date, either by registration or b}^ the decease of one or more of those who signed the said act (/). The Province of Quebec allows " other sufficient proof " of the date of the wife's debt, and in commercial matters it may be by parole {g). The creditor of the wife cannot, by virtue of an act which has not received a certain date before the marriage, sue for payment of his debt against her, except with respect to her reversionary interest, la niie propriete, in her personal immovables (/<). This right to sue against the nue propriete does not exist in Quebec (i). The husband who alleges that he has paid for his wife a debt of this nature cannot demand compensation therefor, either from his wife or from her heirs {h). Collateral Security for Wife's Obligation. — The Province of Quebec retains the old French law, under which not only is the obligation of the wife witliout the previous authority of the husband void, but any collateral security given by a third person for its performance is also void (/c). The French Code is different. It provides that the nullity founded upon the want of the husband's authority can be pleaded only by the wife and the husband, or by their heirs (/). {e) Burge, 1st ed., i., 213, citing Societ. Tr,, ii., c. 1, n. 120; Lebrun, Lebrun, dela Comm., liv. ii., c. 1, s. 5, de la Comm., liv. ii., c. 1, s. 5, n. 16 ; n. 16; Potbier, Traite de la Comm., Potbier, Tiaite des Oblig., s. 395; ss. 2o9, 260; Merlin, E6p., tit. Autoris. Domat, liv. iii., iv., tit. des Cautions, Marit., s. 4 ; Toullier, xii., p. 332. s. i., n. 4 ; Boubier, c. xix., n. 35. See (/) Code Civil, art. 1410; and see C. C. of L.C., arts. 183, 1932; Potbier, art. 1328. Introd. au Coutume d'Orleans, {g) C. C. of L.C., art. 1281. tit. 20, n. 25 ; Nouv. Denisart, vol. \h) C. C, art. 1410; C. C. of L.C., Hypotbcque, pp. 745—748, 774. See art. 1281. Yenuer v. Lortie (1876), 1 (J. L. B. (t) Comm. Eep., ii., 209. 234 ; Lamontagne v. Lamontagne [k) Burge, Ist ed., i., 214, citing (1890), M. L. E. 7 S. C. 162. Voet, lib. xlvi., tit. 1, de Fide jus- (/) Art. 225. eoribus, n. 10; A. Wesel, de Connub. husband's power of authorisation. 307 Bat if the security, instead of being given simply for the perform- ance of the obligation, contains an engagement on the part of the surety that he would indemnify the obligee, incase it were disputed, it would be valid and might been forced (m). And the same rule applies when the surety is bound jointly and severally (n). The principle is that security can only exist in a valid obligation. A party may, nevertheless, guarantee an obligation, although it may be annulled by an exception purely personal to the party bound ; for example, in the case of minority (o). Position of Surety. — The surety may oppose to the creditor all the objections which appertain to the principal debtor, and which are inherent in the debt. But he cannot oppose objections which are purely personal to the debtor (p). Hiisl)and's Power of Authorisation. — Minority of Hushand. — In Quebec, as by the old French law, so completely is the authority attached to the relation of husband, that it may be granted by him, notwithstanding he is a minor. Being emancipated by marriage, he can authorise his wife, though a minor, not only pour les actes de siin2)le administration, but even to make alienations {q). If, however, the husband sustained any prejudice from those alienations, he would be entitled to the relief which is afforded to unmarried minors in similar cases (/■). So notwithstanding his minority he may give her authority pour ester en jugenioit (s). In St. Lucia a husband, although a minor, may in all cases authorise his wife who is of age ; if the wife be a minor, the authorisation of her husband, whether he is of age or a minor, is sufficient for those cases only in which an emancipated minor might act alone {t). But by the Code Civil, if the husband be a minor, an authority {in) Biirge, 1st ed., L, 214, citing L.C., art. 1932. authorities in note (/<;), and Merlin, (p) Code Civil, art. 2036; 0. C. of Eep., tit. Autoris. Marit., sect. 4, s. 3. L.C., art. 1958. {n) Pothier, Obligations, n. 395 ; {q) C. C. of L.C., art. 182. Planiol, Traits Elementaire de Droit (?-) Burge, 1st ed., i., 215, citing Civil, 2nd ed., ii., nn. 2331, 2352; Merlin, Autoris. Marit., sect. 5, s. 1 ; Baudry-Lacantinerie et Wahl, Con- Pothier, Introd. au tit. 10 de la Comm., trats Aleatoires, &c., nn. 919, 920 ; n. 151 ; and see Pothier, Puissance du Norris v. Condon (1888), 14 Q. L. E. Mari, n. 30. 184. (s) Ibid.; C. C. of L.C., art. 182. (o) Code Civff, art. 2012 ; C. C. of {t) Art. 152, C. C. St. Lucia. 20—2 308 PERSONAL CAPACITIES OF HUSBAND AND WIFE. from the Court is in all cases necessary to enable the wife either to bring or defend suite or to make binding contracts (u). Minority of Wife. — By the law of the Province of Quebec, if the wife be a minor as well as the husband, the latter can invest her with authority only for such acts as an emancipated minor can perform alone (x). It would be necessary to procure the appoint- ment of a curator in respect of acts which related to property in immovable or real estate. If the husband had attained his majority he would himself sustain the character and office of her curator (y). Form of Authorisation. — The term " autoriser " or authorise, was, under the old law, considered the proper expression to be used in the grant of the authority, and the term " Jiahilitcr " was not equivalent to it (z). Neither the presence of the husband when the act was done, nor his signing it, was a sufficient authorisation under the contume of Paris (a). By the law of Quebec the use of the word " authorise " is not essential. In contracts it is sufficient that the husband becomes a party to the deed or gives his consent in writing {h). In judicial proceedings the article says : " A wife cannot appear without her husband or his authorisation " (c). There must either be a written authorisation produced by the wife, or else the husband must be made a party to the cause. If the wife is the defendant the plaintiff must serve a separate writ of summons upon the husband. It is not sufficient that the husband is physically present at the trial, or that he gives instructions to the wife's attorney. His written authorisation must be produced or he must be a party to the cause. For otherwise he escapes from the jurisdiction of the Court {d). General or Express Authorisation. — Even when the husband is a party to the act and takes a benefit under it, and therefore may be presumed to give the authority essential to its validity, it has been («) Art. 224. c. 1, s. 3; Bourjon, Droit Comm. de (x) C. C. of L.C., art. 182. la France, liv. ii., c. 1, s. 3, n. 31. [y) Burge, let ed., i., 215; Pothier, (a) Ihid. Introrl. au tit. 7 de la Comm., n. 152. [h) C. C. of L.C., art. 177 ; Kearney (z) Burge, 1st ed., i., 215, citing v. Gervais (1893), E.J. Q. 3 S. C. 496. Pothier, Introd. au tit. 10, n. 145; (c) C. C. of L.C., art. 176. Eicard, Traits du Don Mutuel, c. iii., {d) Thibaudeau v. Desilets (1901), n. 60 ; Lebruii, de a Comm., liv. ii., E. J. Q. 10 K. B. 183. GENERAL OR EXPRESS AUTHORISATION. 309 decided that his express authority for the specific act cannot be dispensed with (e). Coutume of Paris. — It has been considered that the coutinne of Paris requires that the wife should have an express special authority from her husband for the particular act if it relates to the aliena- tion by sale, hypothecation, &c. of immovable property and that a general authority to make alienations, &c., is insufficient (/). Code Civil.^The Code Civil and the Civil Code of Lower Canada do not in this respect adopt the strictness of the coutume of Paris {g). The concurrence of the husband in the transaction, or his consent in writing, is sufficient to give it validity (li). The wife, even though she be not under community of goods or even though she enjoy separate property, whether by stipulation in the marriage contract or by reason of a subsequent judicial separation in goods, is not competent to give, alienate, or mortgage, or acquire property, either by gift or purchase, without the actual concurrence of her husband in the transaction or without his consent in writing (i). The Code of Lower Canada is somewhat fuller. It expressly declares that the wife cannot enter into contracts or obligations unless the husband becomes a party to the deed or gives his consent in writing (/i). And it goes on to say, " If, however, she be separate as to property, she may do and make alone all acts and contracts connected with the administration of her property." But there is no difference in either respect between the law of France and that of Quebec, The difference is merely in expression {I). A general authority by the husband to the wife a administrer ses hiens will enable her to do those acts which are within the limits of that authority, but will give her no power to make any disposition (e) Burge, 1st ed., i., 216, citing are created bj' a law of June 8tli, 1893. Merlin, Eep., tit. Autoris. Marit., (t) Code Civil, art. 217; C. C. of sect. 6, s. 2. L.C., art. 177. See, further, as to the (/) Burge, 1st ed., i., 215, citing old law, Baudry-Lacaut., ii., 710, 711, Pothier, Introd. au tit. 10 de la s. 2243 ; Piverti;. Layet etTurc (1898), Comm., s. 146; Merlin, Rep., tit. Sirey, 1898, i., 400; Clauzonnier v. Autoris. Maiit., sect. 6, s. 2, art. 1. Borello (1902), Sirey, 1903, i., 88. ((/) See all the recent authorities on (A-) C. C. of L. C.,art. 177. The words this point collected and discussed in ' saving the provisions contained in the Baudry-Lacaut., ii., 697, s. 2228. Act 2 5 Vict. c. 66, "refer merely to power {h) Thomas v. Ancouturier (1893), to make deposits in a savings bank. Sirey, 1893, i., 183. Special facilities (/) See Planiol, Traits Elementaire for the giving of marital authorisation de Di'oit Civil, iii., 4th, nn. 953, 1445 by soldiers and sailors in time of war and cf. Code Civil, arts. 1449, 1536. 310 PERSONAL CAPACITIES OF HUSBAND AND WIFE. ])y sale, pledge, or other alienation of immovables (w). Neither will any general power of disposition contained in the settlement made on her marriage be sufficient (?/). By the Code Civil, also, a general authority granted by a husband to his wife to sue or to contract, even though stipulated by marriage contract, is valid so far only as it may affect the administration of the wife's property (o). This is also the law of St. Lucia {})). It is not essential that the authority required by the coutume of Paris and Codes of France and Lower Canada should be given in ipso negotio. It may be given previously, but the feme should recite the authority in the act, and express therein that she acts by virtue of that authority (^2). Atlthorisation by Katification. — Where the previous or cotem- poraneous authority of the husband has been wanting the act will derive no validity from his authority given subsequently or from a ratification by the wife after she has become a widow (r). The Code Civil, by reserving only to the wife, the husband, and their respective heirs the power of pleading the invalidity of any transaction, on the ground of the authority required by law being wanted, gives effect to a subsequent ratification (s). But the ratification must be by the husband and wife together. If it is by the wife only, it is no better than the original act. If it is by the wife authorised by the Judge, the husband's right of challenge remains. If it is by the husband, the wife or her heirs have still the right of challenge. (?n) Pothier, Traite de la Pviissance d seq. ; Laurent, iii., 146, s. 113; du Mali, ss. 67, 68 ; Lamoutague v. Baudry-Lacaut., ii., jip. 712 d seq., Lamontagne (1890), M. L. E. 7 S. C. ss. 2245 et seq. 162. (r) Burge, 1st ed., i., 217; Merlin, {71) C. C. of L.C., art. 181 ; Pothier, Eep., tit. Autoris. Marit., sect. 6, ibid., 8. 67; Merlin, Eep. Autoris. s. 2, art. 3; Lebruu, liv. ii., c. 2, Marit., sect. 6, s. 2. s. ; Code Civil, art. 217 ; Lamontagne (o) Code Civil, art. 223. And see v. Lamontagne (1890), M. L. E. 7 art. 1538. S. C. 162 ; Peloquin v. Cardinal (1893), ip) C. C, art. 151. E. J. Q. 3 Q. B. 10 ; Mignault, Droit () E. S. Q. 5502 a; 60 Vict. c. 49, Dupless., tit. X., liv. 1, c. 4, art. s. 13 (Queb.). ccxxxvi. {q) Baudry-Lacantinerie et Hou- (m) C. C. of L. C, art. 179. gues-Fourcade, Personnes, 2nd ed., ii., [n) Art. 149. n. 225. (o) Dupless., tit. X., liv. 1, c. 4, art. 314 PERSONAL CAPACITIES OF HUSBAND AND WIFE. The Code Civil has provided for the case of a married woman, being a trader, b}^ the following article : " If the wife be a public trader, she shall be competent to contract in matters relating to her trade, without being authorised by her husband, and in such case she also binds her husband, provided there exist community of goods between them. " She shall not be reputed a public trader if she only retail, in the course of business, articles of merchandise belonging to her husband, without carrying on a separate trade on her own account" (r). The capacity which the wife derives from this cause is founded on the presumption that she could not carr}" on trade publicly without the knowledge and permission of her husband, and this permission is equivalent to an authority from him (s). Having invested her with authority for carrying on the trade, he is presumed to have given her authority to do all those acts, and contract those engagements which are requisite for that purpose (t). Wife's Domestic Agency. — Coutume of Paris. — The coutume of Paris and the law of Quebec do not prevent the wife from contracting for the necessaries required for the domestic establishment of her husband's family. The husband, by committing to her the super- intendence of their domestic concerns, gives her an implied autho- rity, and constitutes her his agent to contract for such necessaries as are suited to their station. On such occasions she incurs no personal liability, because she is acting as the agent of her husband (a). It is the duty of the husband, if the wife, acting under this implied authority, exceeds the expenditure which he is disposed to sanction, to give notice to the tradesmen not to give her further credit {b). (r) Code Civil, art. 220 ; Code de tiou of the legal tribunals : Laporte v. Comm., art. 4. See on this subject, Cotel (1897), Sirey, 1897, i., 352. Aubry et Eau, v., pp. 155 et seq. ; {t) Pothier, Puissance du Mari, Demolombe, iv., pp. 232 et seq., ss. 199 nn. 21, 22 ; Baudr3--Lacantinerie et et seq.; Laurent, iii., pp. 151 et seq., Hougues-Fourcade, Personues, 2nd ss. 116 et seq. ; Baudry-Lacant., ii., ed., ii., n. 2255. pp. 720 et seq., ss. 2255 et seq. The (a) Merlin, Pep., tit. Autoris. Marit., acts of a married woman, being a sect. 7, s. 7; Lebrun, de la Comm., marchande publique, are presumed to be liv. ii., c. 2, sect. 2, s. 6 ; Brown r. Guy adee de commerce. Cf. Code de Comm . , (1881), 5 L. N. Ill ; Pichti v. Morse art. 638 ; and see Baudry-Lacant., ii., ^898), 15 E. J. S. C. 30G. 736,8.2276. But the i)resumption maj^ (h) Merlin, tthi cit. sup.; Aubrj' et be rebutted: Demolombe, v., s. 302. Eau, Cours de Droit Civil, 4th ed., (s) The question whether authority v., 341, s. 609; Guillouard, Contrut has been given is one for the apprecia- de Mariage, 3rd ed., ii., n. 8GG, wife's domestic agency. 315 If the wife has exceeded her authority she is liable in respect of the effects she has received ; and even the husband will be liable if he has had the benefit of them. So, although the wife has no authority to receive payment of a debt, yet if she has delivered it to the husband, or, if it has been applied to the benefit of the community, the payment is valid, and the debtor is discharged (c). The wife may be constituted the agent of the husband by an express mandate or she may be competent to charge him, by means of that implied authority which she derives from his having been accustomed to pay similar debts previously contracted by her, or to give receipts for sums paid to the wife (d). Code Civil. — In the matter of domestic administration the wife under the Code Civil is considered to have a tacit authorisation from the husband to purchase such provisions and goods as may be necessary for the household wants. But it is as his agent that she is presumed to contract. Generally speaking, the husband is bound personally to pay for dress, ornaments, and luxuries suitable to the social and pecuniary position of the family (c). But he will not be bound to pay for excessive supplies or purely sumptuary expendi- ture (/), or where the tradesman has accepted the wife as sole debtor (g). Whether the orders given by the wife are exaggerated or not is a question of fact to be decided by the Judge on the circum- stances of each case. The husband may revoke the tacit mandate which the wife is supposed to possess for the purchase of necessaries in several ways. He may give individual notice to tradesmen not to accept the wife's orders, or he may cause an advertisement to be pub- lished in the press, though it will be for the Court to judge whether such advertisement has come to the knowledge of the tradesman (fi). Where the wife is residing in France and her husband is domiciled abroad, she may validly be sued for the price of goods purchased by her (?). And where the wife is living apart and the husband makes (c) Burge, 1st ed., i., 220, citing Manage, pp. 536 e^ sej. Lebruu, de la Coram., liv. iii., c. 1 ; (/) Ibid., p. 538. Merlin, Eep., tit. Autoris. Marit., {g) Gaz. Pal., 93, i., 164. sect. 7 ; CO. of L.C., art. 1011. (//) Pandectes Fran^aises, Mariage, (cZ) Bnrge, 1st ed., i., 220, citing p. 538 ; Poitiers, December 23rd, 1889, Merlin, Eep., tit. Autoris. Marit., D. 90, 2, 359, and D. 1902, 2, 133. sect. 7 ; C. C. of L.C., art. 1291. (t) Vincent v. Trousseau, Gaz. Pal., (e) Cass., July 16th, 1889, s. 90, 88, i., 707. i., 115; Pandectes Pran^aises, tit. 316 PERSONAL CAPACITIES OF HUSBAND AND WIFE. her an allowance for her needs, no action will lie against him, for it is for the tradesmen to inquire what is the wife's situation (k), nor will the husband be responsible for debts incurred by the wife who has left the conjugal domicil against his will, such conduct implying a revocation of his tacit mandate (/)• But, so far as the husband would have been liable for aliment, he may be bound towards a tradesman in good faith who was not aware of the circumstances (m). The wife will remain personally liable, to the extent to which the husband is exonerated, for goods ordered by her if she has realised any advantage from them (n). Neither the husband nor the community will be liable for the wife's qaasi- eontracts or for her torts (delicts or quasi-delicts) unless in so far as the husband may have participated or authorised or ratified the acts in question (o). The only remedy is against any separate estate she may possess. In the case of a married- woman being a foreigner the liability of the husband or wife will be measured by the national law of the parties (jj). The Court of Cassation has, however, laid it down that when transactions take place in France between a Frenchman and foreigner the Frenchman may be excused from making strict inquiry into the capacity of the former. It suffices in such cases that the Frenchman should have acted not inconsiderately, without imprudence and in good faith" (q). The wife cannot bind herself, nor engage the property of the community, even to free her husband from prison, or for the establishment of their children, in case of her husband's absence, until she shall have been thereto authorised by law (?•). The Code Civil and the Civil Code of Lower Canada and the Civil Code of St. Lucia provide that when minors, interdicted persons, or married women, are admitted in such capacities to obtain relief against their engagements, the reimbursement of what, in conse- quence of such engagements, shall have been paid during minority, interdiction, or marriage, cannot be exacted from them, unless it be proved that what has been paid has turned to their advantage (s). (/c) Sirey, 74, ii., 109; Dall., To, ii., {]>) Eodferu v. Digley, Coui-t of 41. ' Appeal of raris, 1900, J. p. 139. (/) Pandectes Fran^aises, tit. {q) S. 61, i., 305. Manage, p. 540. (?•) Code Civil, art. 1427 ; C. C. of (m) Ibid., p. 540. L.C., art. 1297; St. Lucia Code, art. (») Ibid, p. 540. 1215. (o) Ibid., p. 542. (s) Code Civil, art. 1312 ; C. C. of JURIDICAL POSITION OP MARCffAXDE PUBLIQUE. 317 Payment made to the creditor is not valid if he were incapable of receiving it, unless the debtor can prove that the thing paid has turned to the beneiit of the creditor it). Whether Wife, or Marchande Publique, could Sue or be Sued. — In the old law, jurists have considered that the wife, as incident to the implied authority she derives from being une marchande. publique, might sue and be sued as a feme sole (a), but the contrary opinion is now laid down by the Code of Lower Canada and is in conformity with the Code Civil (h). But, in Quebec, when the married woman trader is separate as to property it has been lield that she may sue and be sued without authorisation so far as the act upon which the suit is founded was an act of administration relating to her business (r). As the wife has not, under the coutume of Paris, the Code Civil, and the Civil Code of Lower Canada, a j^ersona standi in judicio without the authority of her husband, a suit, which had been instituted by or against her before her marriage, cannot be after- wards prosecuted without that authority (d). But his authority is inferred if he join with her in the suit(e). When the authority of the husband, for the purpose of enabling the wife to execute acts which regard her interests, unconnected with any suit (actes extra judiciares) or acts connected with the prosecution or defence of any suit {actes judiciares), cannot be obtained, in consequence of his absence, mental incapacity, or refusal, the coutume of Paris (/) enabled the Judge to grant the requisite authority. The coutume did not limit the authority merely L.C., art. 1011 ; C. C. of St. Lucia, Autoris. Marit., sect. 7. art. 943. (c) Methot v. Duun (1884), M. L. R. {t) Code Civil, art. 1241; C. C. of 1 S. C. 224; 12 E. L. 634; Guy >\ L.C., art. 1146. Dageuais (1896), E. J. Q. 9 S. C. 44. (a) Burge, 1st ed., i., 221, citing But see Young r. Feehan (1813), Chasseiioeus, ad Consuet. Burgund., 2 E. de L. 437. Rub. iv., s. 1 ; Boerius, Coutumes de {d) Code of Civ. Proc, Pro v. of Berry, tit. 1, art. iv. ; Choppin, de Quebec, arts. 266 — 270. Moribus Paris, lib. ii., tit. 1, n. 6; (e) Burge, 1st ed., i., 222, citing Mevius, ad Jus. Lub., lib. i., tit. 7, Arrets, Pari., Paris, Juin, 1603; 13 art. 9 ; Peckius, de Jure sistendi, c. 5, Mai, 1702 ; 28 Juin, 1711 ; Arret, Pari, n. 14. de Plandre, 22 Nov., 1696 ; Pothier, (6) C.C. of L.C., art. 176; Code Civil, Traite de la Puiss, du Mari, s. 56; art. 215. See Burge, 1st ed., i., 221, Baudry-Lacant., ii., 709, s. 2242; citing Eodenburg, de Jure Con jug., but see Code Civ. Proc, Quebec, tit. iii., c. 1, n. xviii. ; Voet, ad Pand., art. 270. lib. v., tit. i., n. 15 ; Merlin, Eep. tit., (/) Art. 218; Burge, 1st ed., i., 222. 318 PERSONAL CAPACITIES OF HUSBAND AND WIFE. to actes judiciares. The husband might grant it for an}- contract or alienation (g). The Code Civil and the Civil Code of Lower Canada adopt the principle of this article and the construction which it had received (h). As regards the wife, authorisation, whether granted by her hus- band or by the Court, renders her as capable as if she had not been married (0- Effect of Authority of Court. — The authority conferred by the Court has not the effect of dej)riving the wife of the right of rescinding contracts on the same grounds which would have been competent to her in any other case of lesion (k). The authority derived from the Court, as well as from the hus- band, is limited to the special act for which it was granted. But an authority, j^oiir plaider, extends to the execution of the judgment, and even to actes extrajudiciares, as division, &c. (/). If the suit be against the wife and she will not herself aj)ply to the Court for an authority to enable her to defend, the adverse party may obtain it, and unless he does obtain it the judgment is void (m). The effect of an authority granted by the husband is different from that of an authority granted by the Court. When it is granted by the former, and the spouses are under the regime of community (n), the community is chargeable with the consequences of the act (o). {y) Burge, 1st ed., i., 222, citing Aubry et Eau, v., 159, n. 91 ; Laurent, Arret, April 28th, 1722; Eouhier, iii., 178, s. 142; Baudry-Lacant. , ii., c. xvii. 766, s. 2.'U0. (/t) Arts. 218 (refusal of authorisa- (A-) Merlin, 'Rip., tit. Autoris. tion ester en jwjement), 219 (refusal of Marit., sect. 8, s. 4. authorisation to do an act), 221 (con- {I) Burge, 1st ed., i., 222, citing viction involving peine afflictive ou Arrgt, April 26th, 1722 ; Merlin, ibid, infamante), 222 (interdiction or (m) Merlin, ibid. absence), 224 (minority). As to pro- (n) In the absence of such matri- cedure, see Code Proced. Civ., arts. nionial convention, the husband is not ^61 — 864. As to whether the deten- bound as a result of his authorisation : tion of the husband in an asylum Baudry-Lacant., ii., 777, s. 2328. under the law of June 30th, 1838, is a (o) Code Civil, arts. 220 (a particular ground for an application for judicial application of this rule to the case authorisation, there is some contro- wherethe wifeisamarc/jawcZepMiZ/f^Me), versy: 8eeI)emolombe,iv.,267, s. 225; 1409 (2), 1419. For Quebec, C. C. Aubry etBau, v., 147, n.40; Baudry- of L.C., arts. 1280, 1290; Auge v. Lacant., ii., 744, s. 2284. Uaoust (1893), E. J. Q. 4 S. C. 113; (j) Pothier, Tr. de Mar., s. 76 ; Mignault, Droit Civ. Cauad., i., 547. LAW OF CHANNEL ISLANDS. 319 When it is granted by the latter, it produces no effects as against the husband (p). ^ Termination of Marital Power. — The marital power, like every other civil right, ceases when the husband has forfeited his civil status. The wife is then capable of acting in every respect as a feme sole, and does not require the authority of the Judge (). German Law. — The German Civil Code has the following provisions on the subject : (a) The spouses are bound to live together as husband and wife, but if the insistence of one of the spouses on this right amounts to an abuse of the right, the other spouse is not bound to observe his or her corresponding duty ; the same rule applies in all cases in which the other spouse would be entitled to claim a divorce (c) ; (b) the husband decides in all questions relating to the conjugal life, and more particularly as regards the choice of a domicil and of a residence ; but even in this case the wife is not obliged to obey if the husband's requirements constitute an abuse of his right (d) ; (c) the wife has the right and duty to manage the house- hold affairs ; she must do personal w^ork in the house or in her husband's business if such work is usually done by persons in her condition of life (). If a husband neglects to provide for his wife and children, the Court may order his debtors to pay sums due from them to the wife wholly or in part. Execution for debt between spouses is limited to the cases specially provided for by the law (c). SECTION III. Bkitish Dominions and the United States. Law of England. — Common Law. — By the common law of England the husband and wife are one person, that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. "With some few exceptions, e.c/., when her husband was convicted (/i) Code of Civil l^rocechirc, art. Fedenil Civil Code, art. KK). 383 ; Criminal Procedure, art. ol. (wi) Law of Civil Status and Mar- (/) Arts. 90—92. riage, 1874, s. 46 ; Huber, i. 234. (/.•) Federal Constitution, art. 54 ; (a) So the Federal Civil Code, art. Law of Civil Status and Mamage, 159. 1874, art. 2.5 ; Iluber, i. 233 ; Federal [b) Art. 177. Civil Code, art. 16L (c) Arts. 171, 173— 17G. (/) This rxile is preserved by the LAW OF ENGLAND — COMMON LAW. 327 of a felony or was civilly dead (d), or when she traded as a, feme sole in the City of London (e), the married woman was incai)able of contracting or acting as a feme sole, or of suing or being sued as such ( / ) . She could not, therefore, be joined in any action as a defendant in respect of a contract subsequent to her marriage {(/), because the contract as against her was void. If a contract, made by her before her marriage, were put in suit against her, and she was sued jointly with her husband (h), a promise by her could not be alleged (t). The deeds or other instruments under seal of a married woman were void (k) . It was not an exception to the rule which incapacitated her from binding herself by her contracts that the husband had become discharged by her conduct from that liability, which it will be seen he incurred, as incident to his relation of husband. As a con- sequence of the wife's incapacity to make a contract binding on her at law, the rule prevailed, notwithstanding she might have separate property (l). But in a Court of Equity in England, according to its doctrines, the contracts of the wife might be enforced under certain circumstances hereafter stated against her separate property. The wife was incapable of making any -personal contract or obligation, or of incurring any debt or engagement, to bind her husband, without his concurrence or authority, express or implied (//()• (f?) Sparrow v. Carruthers, cited in (t) Morris v. Norfolk (1808), 1 Lean v. Schutz (1778), 2 W. Black. Taunt. 212; Pittam v. Foster (1823). 1195. 1 B. & C. 248. (e) Ex parte Carrington (1739), 1 (^) Eead v. Jewson, cited (1773), 4 Atk. 206. And see further, as to the T. K. 362 ; Perk. s. 6. position of a feme sole trader under (0 Marshall v. Button (1800), 8 the custom of the City of London : T. E. 547 ; Gilchrist v. Brown (1792), Caudell v. Shaw (1791), 4 T. E. 361 ; 4 T. E. 766; Waters v. Smith (1795), Clayton v. Adams (1796), 6 T. E. 6 T. E. 451 ; Wardell v. Gooch 60o'. (1806), 7 East, 582; Pritchett v. Cross (/) Com. Dig., Baron and Feme, (1792), 2 H. Black. Eep. 17 ; Pitt v. Q. 241; James r. Eowkes (1697), 12 Thompson (1800), 1 East, 16; Crookes Mod. 101. V. Fry (1817), 1 B. & Aid. 165. (fy) 4 Vin. Abr. 93, pi. 5. {m) The Earl of Derby's Case (19 (//) Mitchinson r. Hewson (1797), 7 Eliz.), 4 Leon. 42 ; Smith v. Plomer T. B. 348 ; Eichardson v. Hall (1819), (1812), 15 East, 607. 1 Brod. & Bing. 50. 328 PERSONAL CAPACITIES OF HUSBAND AND WIFE. Upon this principle she was not permitted to assume the office and responsibility'^ of an executrix without her husband's concurrence («). This disability extended to any contract which in its consequences might personally affect him. If, therefore, she purchased an estate without his knowledge, and he afterwards disagreed to it, he might recover the purchase-money from the vendor {<>) ; but his assent to the transaction would confirm it so far as he was interested ; yet after his death, if the wife survived him, or if she made no election and died before him, her heirs might disaffirm the purchase. The wife, it should be observed, was a person by law enabled either to purchase or to accept an estate ; therefore, subject to the approval or disagreement of her husband, it vested in her in the meantime (j)). If the wife, after her husband's death, entered upon the estate made over to her during the marriage and took the profits, that would be an assent and confirmation (q). She was incapable of receiving or disposing of money without his concurrence. Therefore payment of a legacy bequeathed to her generally, and not given to her separate use, would be a void pay- ment as to her husband (?•), and the law was the same with regard to rent, money, &c. (s). But the wife might act as her husband's agent or attorney. If, therefore, he authorised her to receive and pay money, or if she were accustomed so to do with his permission, which is an implied authority, he would be bound by such her acts (t). So, also, if the husband desired money to be lent to his wife, payment of it to her would bind him ; and he would be liable to make satisfaction to the creditor (»), because this amounted to an express contract by the husband to pay the money and an assent that the wife should receive it. (?i) Burge, 1st ed., i., 304, citing 3 Eep. 25 a, 26 a. Godolph, part 2, c. 10, ss. 2, 3 ; Wentw. (r) Palmer i;. Trevor (1684), 1 Yeru. Off. Ex. 377, 14th ed. ; Thrustout v. 261, and note. Coppin (12 Geo. III.), 2 Bl. Eop. 801. (s) Eoberts v. Pierson (1753), 2 (o) Granby v. Allen (9 Will. III.), 1 Wils. 3 ; Tracy v. Dutton (19 Jac. I.), Lord Paym. Rep. 224 ; S. C, sub nom. Palm. 206. Garbrund r. Allen (1697), Comberb. {t) Palm. 206 ; Seaborne v. Black- 450. ston (1663), Freem. Ch. 178. (p) Co. Litt. 3. («) Stephenson v. Hardy (1773), 3 \fj) Butler and Baker's Case (1591), Wils. 388. EQUITY — MODERN LEGISLATION — WIFE's EXPRESS AGENCY. 329 She ^Yas also incapable, without his concm-rence or authority, of suspending, altering, or releasing any debt made payable to herself generally, or of giving, indorsing, or accepting a promissory note or other security (r). In England (u-) and Scotland (a;) the common law, instead of adopting the Soiatns Consult urn Vdleianum, rendered the married woman incapable of l)inding herself. Equity. — Modern Legislation. — Partly by the action of the Courts of Equity, but mainly by the Married Women's Property Acts, 1870 0/), 1874 (^), 1882(a), and 1893 (^), the position of married women under the law has been profoundly affected, with the result that, as regards their proprietary interests, husband and wife have practically become distinct legal entities, both between them- selves (c) and as regards third persons, alike in contract and in tort. The modern law as to all questions of the proprietary rights of married women, and of their contracts with reference to their separate estate (the liability incurred by a married woman on her contracts is a proprietary and not a personal one) {d), and of the effects of the Married Women's Property Acts, will be examined in a subsequent chapter {e). Here we shall deal merely with the effect of marriage on her personal capacity and status in certain respects apart from tliese statutes. Contracts. — A Married Woman as Agent for her Husband. — And first, as to a married woman's contracts as agent for her husband. Such agency may be express, implied or ostensible. Express Agency. — Where a husband expressly authorises his wife to act as his agent he is of course bound by what she does within the scope of her authority (/). (v) Eawliusou r. Stoue (1746), o can contract together, and there is Wils. Rep. 1, at p. 5 ; Browu v. Benson nothing to prevent a wife from stand- (1803), 3 East, 331. ing in the position of landlord to her [w) See p. 327, antt. As to modern husband, and if there is a real agree- legislation, see Chapter XIII., pod. ment between them, the husband is, (a;) Stair, 1,4, n. IG; and see p. 338, by virtue of such tenancj^ entitled to jpost ; and as to modern legislation, be registered as a voter under s. 3 of see Chapter XII., post. the Representation of the People Act, (?/) 33 & 34 Vict. c. 93. 1867 (30 & 31 Vict. c. 102), s. 3 : (z) 37 & 38 Vict. c. 50. Pearce v. Merriman, [1904] 1 K. B. 80. (a) 45 & 46 Vict. c. 75. [d) See Scott v. Morlej- (1887), 20 (b) 56 & 57 Vict. c. 63. Q. B. D. 120. (c) Since the Married Women's (e) See Chapter XIII., post. Property Act, 1882, husband and wife (/) See Lord v. Hall (1849), 8 C. B. 330 PERSONAL CAPACITIES OF HUSBAND AND WIFE. Implied Agency. — During Cohabitation. — While the mere fact of marriage im^^lies no such authority, if the wife, during their cohabita- tion, orders necessaries the husband's authority is presumed, unless the contrary appear {(/), as for instance, if the husband has warned the plaintiff not to give her credit (h), or has made his wife an adequate allowance for necessaries, and has forbidden her to pledge his credit, in which case notice to the jDlaintiff of the allowance or the prohibition is unnecessary (i). The term "necessaries " means goods suitable to the husband's state or degree or to the position which he allows his wife to assume (J). But the real question in cases under this head is the question of authority (k) ; and evidence that the wife w^as at the time of purchase already supplied with similar " necessaries " is admissible only to negative such authority (0- During cohabitation a wife has no implied authority to borrow, even for the purpose of purchasing " necessaries." Cohabitation of a husband and wife, each having property, and the fact that house- hold necessaries are, upon the orders of the wife, supplied to and consumed at the common home, affords no evidence of a joint liability on the part of the husband and wdfe for the price of such necessaries (m). Such facts give rise to a presumption that the wife has actual authority to pledge her husband's authority for the house- hold necessaries, but the presumption is one not of law but of fact only, and may be rebutted, as by proving that the husband has 627 ; Marshall v. Eiitton (1800), 8 The same reason applies to render T. E. 545. a man liable for the debts of a ((/) Etheriugtou v. Parrot (1704), 1 woman (a) with whom he cohabits, Salk. 118; Jolly r. Eees (1864), 15 holding her out to the world as his C. B. (N. S.) 628; Debenham v. wife: Watson v. Threlkeld (1794), 2 Mellon (1880), 6 A. C. 24. Eemming- Esp. 637 ; or (b) whom he makes his toni;. Broadwood (1902), 18 T. L. E. domestic manager. 270; Slater v. Parker (1908), 24 (/j) Eeid i'. Teakle (1853), 13 C. B. T. L. E. 021. 627 ; Debenham v. Mellon, ubi supra. {h) Etherington )'. Parrot, vhi (/) Eeneanx c Teakle (1853), 8 supra. Exch. 680. It is immaterial whether (/) Jollj' t'. Eees, t(i*( «!(/;?•<( ; Deben- the plaintiff did or did not know of ham V, Mellon, nhi supra. the supply of the articles in question. (/) Jolly r. Eees, ?(&t supra; Hunt Cf. Barnes v. Toye (1884), 13 t'. DeBlaquiere(1829). oBing. 550; 30 Q. B. D. 410; Johnstone v. Marks E. E. 737; Einmett r. Norton (1838), (1887), 19 Q. B. D. 509. 8 C. & P. 506; and cf. the definition (?/i) Morel Brothers & Co. v. West- " necessaries " in the Sale of Goods moreland (Earl of) (1902), 72 L. J. Act, 1893 (56 & 57 Vict. c. 71), s. 2, K. B. m. WIFE S IMPLIED AGENCY WHILE LIVING APART. 331 provided a sufficient allowance for household necessaries, and has forbidden the wife to incur household expenses beyond such allow- ance (»)• It is a good defence by the husband, in an action against husband and wife for the price of household necessaries supplied, upon the order of the wife, at the residence where they cohabited, that the plaintiff has previously obtained judgment against the wife as principal, even if the judgment was only an interlocutory one under Order XIV. of the Rules of the Supreme Court (n). While Living Apart. — When the husband and wife are living apart (o), the presumption is that the wife has no authority to pledge her husband's credit. If a tradesman brings an action against a husband for goods supplied to the wife while living apart from her husband, it is for him to show that, under the circum- stances of the separation, the wife had authority to bind her husband (p). Separation involves a revocation of the wife's agency, and the fact that the plaintiff had no notice of the separation will not better his position, unless he has been previously dealing with the wife as her husband's agent with the latter 's permission {q). But if the plaintiff can show that the parties are living separate, either on account of the husband's misconduct or cruelty, the wife being left without adequate means, or by mutual consent, and that the husband has failed to pay her a reasonable or agreed allowance, she becomes her husband's agent of necessity, and is entitled to pledge his credit for suitable necessaries (r). ill) See note {m), p. 38U. Beuedict (1828), 5 Biug. 28; Eead v. (o) A woman divorced from her Legard (1851), 6 Exch. 642 ; Emmett husband is restored to the position of v. Norton, ilM supra; Bazeley v. a feme sole. So also is a woman Porder (1868), L. E,. 3 Q. B. 559 ; judicially separated, but only as re- Wilson v. Ford (1868), L. E. 3 Ex. gards such property as she may 63. As to the effect of the husband's acquire or as may come to or devolve misconduct or cruelty, see Aldis v. upon her after the decree : Waite v. Chapman, Selw. N. P. 232 ; Hodges Morland (1888), 38 Ch. D. 135; r. Hodges (1796), 1 Esp. 441 ; 4 E. R. cf. Hill V. Cooper, [1893] 2 Q. B. 889; Houliston v. Smyth (1825), 3 85. Bing. 127. As to separation by {p) Mainwiring r. Leslie (1826), mutual consent, without an adequate Moody & M. 18 ; 31 E. E. 691. allowance to the wife, see Eastland v. (q) Cf. Wallis V. Biddick (1873), 22 Burchell (1878), 3 Q. B. D. 432. If W. E. 76 ; Clifford v. Laton (1827), the separation is due to the fault of 3 C. & P. 15. the wife, and without the husband's (r) Montague r. Benedict (1825), 3 consent, she cannot pledge his credit, B. & C. 631 ; 27 E. E. 444 ; Seaton v, even for necessaries : Etheriugton v. 332 PERSONAL CAPACITIES OF HUSBAND AND WIFE. Ostensible Agency. — If the husband " holds out " his wife as his agent, e.(j., h\ standing by while she orders goods (s), or by having paid on previous occasions for similar goods which she had ordered (i), he will be liable on her contracts to anyone who has given her credit in the belief that she possesses such authority. If he revokes such authority, either expressly or by separating from his w^ife, he must give notice to the tradesman with whom she dealt, otherwise the wife's ostensible agency will continue, even if the husband has died (»), or become insane (x). Torts. — A husband is liable to be sued jointly with his wife and to satisfy judgment obtained against her for her fraud, as well as for other torts committed by her (y) during her coverture, unless the fraud or tort is directly connected with a contract by her, is the means of effecting or inducing it, and is part of the same transaction. That liability which existed before the Married Women's Property Act, 1882 (^), is not affected by that Act, nor is the remedy of the party injured limited by the Act to the wife's separate estate, if any (a). If the husband dies, or the wife is judicially separated from him ijendente lite, the action abates against him (h). Evidence. — Under the Criminal Evidence Act, 1898 (e), the wife or husband of a person charged with an offence is now a competent witness for the defence at every stage of the proceedings (d). No Parrot, uhi supra ; Hindley v. West- (z) 45 & 46 Vict. c. 75. ineath (1827), 6 B. & C. 200 ; 30 R. E. (a) Earle !•. Kingscote, [1900] 2 Ch. 290 ; and unchastity on the part of 585. The husband was not, at common the wife will terminate the husband's law, strictly speaking, liable for the duty to maintain her, and, conse- wife's torts at all. He was liable to be quently, her right to pledge his credit : sued jointly with her because of her Harris t'. Mon-is (1801), 4 Esp. 41; inability to be sued alone ; and unless Wilson V. Glossop (1888), 20 Q. B. D. judgment was obtained against them 354 ; Collins v. Cory (1901), 17 T. L. E. both during the coverture, his liability 242. was at an end : Lush, Husband and (s) Jetley i'. Hill (1«84), 1 C. & E. Wife, 3rd ed., p. 328 ; and cf. Capel 239. V. Powell (186-1), 17 C. B. (N. S.) 743 ; {t) Debenham v. Mellon, nhi supra. Cuenod v. Leslie (1909), 25 T. L.E. 374, (m) Smout V. Ilbery (1842), 10 at p. 375 ; [1909] 1 K. B. 880. M. & W. 1 ; 62 E. E. 510. (6) Cuenod r. Leslie, uhi supra, (x) Drew v. Nunn (1879), 4 Q. B. D. reversing Eidley, J., in S. C. (1908), ^50 1. 25T. L. E. 2. (// As regards torts between spouses (c) 61 & 62 Yict. c. 36. see p. 716, post. («/) S. 1. WIFE S ACKNOWLEDGMENT OF DEEDS. 333 comment is to be made, however, on the failure of a husband or wife to give evidence (c) ; neither is to be called except on the application of the person charged (/) ; neither is to be compellable to disclose any communication made to each other during marriage (g). The wife or the husband may be called for the prosecution, without the consent of the person charged, in case of certain oiYences enumerated in the Schedule to the Act, where such evidence is admissible at common law (/<)• Coercion. — Where a wife commits a felony under the compulsion of her husband she will be treated as his innocent instrument and excused. The mere fact that the parties are married has never constituted a presumption of compulsion (i). Questions have arisen from time to time how far the mere presence of the hus- band should furnish a presumption of marital control, and the decisions on the subject have not been entirely uniform (/c). The rule may, in any case, be rebutted by evidence of independent action or active participation by the wife (/). It has been held (ni) that the doctrine of presumed coercion does not apply to murder ; and there is some controversy as to whether, and under what limitations, it applies to misdemeanour (n). Acknowledgment of Deeds. — In the case of a woman married before 1888, all deeds purporting to deal with land (unless she was entitled to it for her separate use) and of her reversionary interests in personal property must be executed by her and her husband, and acknowledged by her (o) in accordance with the provisions of the Fines and Eecoveries Act, 1838 (j)), and s. 7 of the Conveyancing (e) S. 1 (b). 771. (/) S. 1 (c). {m) Beg. v. Mauniug (1849), 2 ((/) S. 1 (d). 0. & K. 903. [h] S. 4. («) See Eeg. v. Cruse (1838), 8 (t) Browu V. Att.-Gen. for New C. & P. 541 ; and cf. E. v. Conoll}- Zealaud, [1898] A. C, at p. 237. (1829), 2 Lew. 229 ; R. v. Price (1837), {k) Eucyclo. Laws Eng., 2nded., iii. 8 C. & P. 20. 130, tit. Coercion; aud see Browu i'. (o) Encyclo. Laws Eng., 2ud ed., i. Att.-Gen. for New Zealand, ubi supra ; 125, tit. Acknowledgment of Deeds. Eeg. V. Torpey (1871), 12 Cox, C. 0. {}>) 3 & 4 Will. IV. c. 74. In 45 ; Eeg. v. Baines (1900), 19 Cox, C. C. Johnson v. Clark (1907), 24 T. L. E. 524. 156, an alleged custom of biu'gage (1) Eeg. V. Torpey, uld supra ; Eeg. v. tenure in Kendal for a married woman Coben (1868), 11 Cox, C. C. 99; Eeg. to dispose of her real estate by deed V. John (1875), 13 Cox, C. C. 100; with her husband's concurrence, but Eeg. V. Dykes (1885), 15 Cox, C. C. without a separate examination, was. 334 PERSONAL CAPACITIES OF HUSBAND AND WIFE. Act, 1882 (q). Malins' Act, 1857 (r), enabled a married woman to dispose of reversionary interests in personal estate (with certain exceptions, notably personal estate to which she is entitled under her marriage settlement) and provided that every deed thereunder should be acknowledged in the manner prescribed by the Fines and Eecoveries Act, 1833 (.s-)- Juridical Position. — Under the Married Women's Property Act, 1882 (t), a married woman is now capable of suing and being sued either in contract or tort or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or against her (u). A judgment against a married woman imposes a liability on her property only, and not upon her person (v), and therefore she cannot be imprisoned upon a debtor's summons (x), nor can a bankruptcy notice issue against her (ij). Insurance. — A married woman has an insurable interest in the life of her husband (z), and may now by statute (a) insure her own, or her husband's, life for her separate use, by virtue of the power to contract which modern legislation has conferred upon her, and the policy and all the benefit thereof will enure accordingly. Moreover, a policy of insurance effected by a man on his own life, and expressed to be for the benefit of his wife and children, creates a trust in favour of the latter, and does not, so long as any object held by Parker, J., to be bad in for costs by married women, see In re law. Isaac (1885), 30 Ch.D. -lis ; Whittaker {q) 45 & 46 Vict. 0. 39. v. Kershaw (1890), 44 Ch. D. 29G ; (r) 20 & 21 Vict. c. 56. See also as Pike v. Cave (1893), 62 L. J. Ch. 937. to acknowledf^iiients under the Land The question of the remedies, civil and Transfer Act, 1875 (38 & 39 Vict. c. 87), criminal, of married women in relation 8. 87, and Eules of 1903, rr. 338—340. to their separate property is referred to (s) See note (p), p. 333. below, p. 116, post. {t) 45 & 46 Vict. c. 75. (z) Evans f. Bignold (1869), L. E. 4 {u) S. 1 (2). Q. B. 622. So has the husband in the {v) See Scott v. Morley (1887), 20 life of the wife : Gritfitlis v. Flemiu-, Q. 13. D. 120; Softlaw v. Welch, [1909] 1 K. B. 805. [1899] 2 Q. B. 419. («) Married Women's Property Act, {x) Draycott v. Harrison (1886), 17 1882 (45 & 46 Vict. c. 75), s. 11; and Q. B. 1). 304. see Married Women's Property Act, (?/) In re Lynes, [1893] 2 Q. B. 1 13 ; 1870 (33 & 34 Vict. c. 93), s. 10. See and cf. TurnbuU v. Nicholas, [1900] alsoNew York Cons. Laws (1909), c. 14, 1 Ch. 180. As to the giving of security 8.52. AGREEMENT IN DEROGATION OF MARITAL RELATIONS. 335 of the trust remains unperformed, form part of the estate of the msured, nor is it subject to his debts (b), provided that if the policy was effected, and the premiums paid, with intent to defraud the creditors of the insured, the latter are entitled to receive out of the monies paid under the policy a sum equal to the premiums so paid (b). The executors of a person who has effected an insurance on his life for the benefit of his wife can maintain an action on the policy, notwithstanding that his death was caused by a felonious act by his wife (c). In such a case, the trust created by the policy having been defeated by reason of her crime, the insurance money becomes part of the property of the assured, and as between his legal representatives and the insurers, no question of public policy arises to afford a defence to the action (c). OflBce. — A married woujgn may now accept the office of trustee, executrix, or administrajrix, without her husband's consent in virtue of her power to contract as a feme sole (d) ; and it is not necessary that her husband should join in the administration bond (e). A married woman is still incapable of acting as a next friend or a guardian ad litem (/). Agreement in Derogation of Marital Relations. — By the common law of England persons by their private agreement could not alter the character and condition which by law resulted from the state of marriage while it subsisted, and from thence acquire rights of action and legal responsibilities and consequences following from such alteration of character and condition (g). {b) The same rule applies to a policy woman married since the commence- by a woman on her own life for the ment of the Act, being a trustee benefit of her husband and children : of real estate, to convey to a pur- Act of 1882, s. IL chaser except with the concurrence (c) Cleaver v. Mutual Eeserve Fund of her husband and by deed acknow- Life Association, [1892] 1 Q. B. 147. ledged by her : In re Harkuess and See also, as to the construction of Allsopp's Contract, [1896] 2 Ch. 358. s. 11, Browne v. Browne, [1903] 1 Ch. It has been held that this rule does not 188 ; In re Griffiths' Policy, [1903] apply to a married woman who is 1 Ch. 739. a mortgagee : In re Brooke and (d) See Married Women's Property Fremlin's Contract, [1898] 1 Ch. 647. Acts, 1882 (45 & 46 Yict. c. 75), This power has now been given to her ss. 18, 24; and 1907 (7 Edw. VII. by an Act of 1907 (c. 18). c. 18), s. 1. (/) In re Somerset (Duke of) (1887), (e) In the goods of Ayres (1883), 34 Ch. D. 465. 8 P. D. 168. The Married Women's ( '338 PERSONAL CAPACITIES OF HUSBAND AND WIFE. Husband's Curatorial Power. — The potestas vtaritalls constitutes him the curator to his wife. And as a consequence of this curatorial power, all deeds done or granted bj^ a wife without his consent are in themselves void, unless they should relate to her separate property, from which the husband's. /»s mariti and right of adminis- tration are excluded, or are in his own favour (»)■ Even when in security for his debts, or in favour of his relations, the wife's deeds require the husband's consent (o). "Wife's Obligations ex delicto. — There are some obligations granted by the wife during marriage which require the husband's consent ; others are valid without it ; and, again, there are others which are null, though his consent be given. Obligations arise either from delict or from contract. Obligations formed by the wife's delict stand good against herself (j^) because marriage affords no indemnity to delinquents ; but they have no operation against the husband {q) unless he be convicted of accession to the crime or delict which produces the obligation ; for delicts being personal ought to draw no punishment on the innocent; culpa teneat siios auctores. The effect of such obligations is, in several respects limited even as to the wife; for where the punishment consists of a pecuniary fine, her person cannot be attached for the payment of it during the marriage, if she has no separate estate exempt from the Juii mariti {)■). Diligence must, therefore, be suspended until the dissolution of the inarriage (6-). Wife's Personal Obligations. — Personal obligations granted by the Avife whilst she is sub curd mariti, although with the husband's consent, are ipso jure void ; e.g., bonds, bills, promissory notes, obligatory receipts, contracts, Sec, for whatever cause they may have been granted, whether for borrowed money, the price of goods, or as a cautioner for others {t). Such obligations cannot even be (h) Ersk. Inst., 1, 0, 8. 22 ; Stair, Milue r. Smiths (18!»2), 20 llettie, 9o. b. 1, tit. iv., 8. 16; Eenuie v. Eitchie (>•) Chalmers i\ Baillie (1790), (1845), 4 Bell, App. 221; Dickson r. Mor. Diet., G0S3. Blair (1871), 10 Macph. 41. (s) Murray v. Graham (1724), (o) Bell, Trine. IGIO; Eenuie v. Mor. Diet., 6079; Fiscal of Lanark- Eitchie, supra. shire v. MeLuckie (1796), Ilurue, 204. (p) See Eraser, Husband and Wife, But sec Eraser, Husband and Wife, 1., 545, 557. i.,560 ; Stair'slnst., b. 1, tit. iv., e. 16, (7) Thus a husband is not respon- note, flible civilly lor his wife's slander: {() Boll's Princ, 1611; I'rascr, Barrr. Neilsonp(186H), 6 Macph. 651; Husband and Wife, i., p. 519, 52;; WIKK's N0N-LIA1;ILITY — -common law EXCEI'TIOXS. 1339 fche foundation of diligence against the Avife's Heparate estate (»)• The^^ do not acquire force even by her judicial ratiiication of them (r) ; for deeds in themselves null cannot be rendered effectual by any ratification, though they may be, by acts of homologation performed by the grantor after becoming .s/N-,/»m-(/r). Common Law Exceptions. — This rule admits of several exceptions at common law. 1. Euie of In rem versum. — Where the wife has a separate pecnlhun, or stock, derived either from her father or a stranger, for the maintenance of herself and children, which is b}^ the grant exempted from the.//^s manti, she can lawfully charge or burden such stock and bind herself for sums of money to the extent of such stock (.r). But the only way in whicli the wife's personal obligation can be made good is Ijy showing that the money has been in roii vi'rsum of the wife, which case will be the basis of diligence against her property, stante )ii(itriin(»iio, and even against her person after the dissolution of the marriage (^). I)ebts incurred in the management, recovery, and exoneration of the separate property of a married woman are in rem vosiuii of her(r); so are bills and promissor}'' notes (a) granted by her in a trade which she carries on with her husband's consent, with separate property, excluded from hi^ jus niariti{b), and her separate property is chargeable in her hands, and in those of her husband, to whatever extent he has benefited by it, with her ante-nuptial debts (c). 2. Separation. — Where there is a legal, or even voluntary separation of the husband and wife, under circumstances which do not entitle the wife to pledge her husband's credit— e.g., if she has et seq. And see Jackson i: McDiarmid (1791), Mor. Diet., p. 5980. (1892), 19 Eettie, 528, as to cash credit (?.) Eraser, Husband and Wife, i., bonds. 537. Such, obligations are binding if («) I hid. But see p. 341, infra, contracted with the intention of bene- for cases where diligence can be fiting the wife's separate estate, founded against the wife's personal whether they do so in fact or not : ■estate. Henderson v. Dawson (1895), 22 (r) Birch v. Douglas (1663), Mor. Ilettie, 895. Diet., 5961. (a) But not as cautioner : Harvey, (/(') Ersk. Inst., 3, 3, s. 47. nlii cit. supra, note {y). (.'•) Neilsou V. Arthur (1672), Mor. (b) Biggart i'. City of Glasgow Bank Diet., 5984; Galbaith v. Provident (1879), 6 Kettie, 470. Bank (1900), 2 Eraser, 1148. (c) Married Women's Property Act, (//) Stair's Inst., 1, 4, s. 16, note; 1877, s. 4. Harvey and Eawel v. Chenel's Trustees 22—2 340 PEPxSONAL CAPACITIES OF HUSliAXD AND AVIFE. deserted him, or the husbnud has settled an adequate sum for the ■wife's separate maintenance, her personal obligations during their separation are effectual against her; and if the husl)and is abroad and the wife engaged in trade, diligence can proceed on obligations, contracted in such trade, against her person { she is in the same position if she has obtained a protection order, or is judicially separated from her husband. Moreover, under the Married "Women's Property (Scotland) Act, 1881 (Ji), the income of heritable property in Scotland belonging to a woman, married after the passing of the Act, is no longer subject either to the jus iJiai-iti,oi' to the right of administration, of her husband, and her receipt for the rents of such property would now probably be sufticient (/). Property acquired by a married woman after the passing of the Act is in the same position as property belonging to her when the Act was passed, unless the husband " have, before the passing thereof, by irrevocable deed or deeds, made a reasonable provision for his wife in the event of her surviving him " (/.•). In so far as the corpua of a married woman s heritage is concerned, where the provisions of the Act of 1881 apply, she is still in the same position as she occupied at common law, and cannot, therefore, without her husband's consent burden or dispose of it(/). The same observation holds good with regard to both the income and the corpus of heritage from which the husband's jus niavili and right of administration have not been excluded (/;/). («/) Ersk. Inst., 1, G, s. 2o ; Churn- vestment Co. v. Cowe, &c. (1877), 4 Hide )•. Currie (1789), Mov. Diet., Eettie, at p. 704. p. G082 ; followed in Orme )•. Differs {(j) See p. ;>41, ^>osf. (183;}), 12 Shaw, 141); Biggart r. City \h) 44 & 45 Yict. c. 2G. of Glasgow Bank (1879), G Rcttio, 47(). (/) S. 2. (e) Ersk. Inst., 1, 6, 8. 25. (/■•) S. 3. (/) Annand v. Scott (1775), 2 (/) Ersk. Inst., 1, (5, s. 27. Paton, ;3G!>; Standard rr()i)orty In- [m) I'rsk. Inst., «) Dulling >: McKenzio (1(575), {ill) S. 1. Mor. Diet., p. mOo ; Alston c Philip (») Erek. Inst., 1, r^, h. 20; Stair's and Sir James Stanfilds (I(5S2), Mor. Inst., 1, 4, s. 10. Diet., p. OOOT ; IJell, I'rin., 15()(). wife's piij'jrosiTrRA — inhibition. 343 Termination of Praepositura. — HWm prcBposituva ceases, (1) by the ■wife's delict ; for if she should abandon her husband's family, and take up her residence elsewhere, she can be no longer looked upon either as manager of the family, or as being under the husband's protection ; and therefore she has no longer authority to oblige him to the payment of any of her debts, except those which she may have contracted for her necessary subsistence {q) ; (2) by the husband depriving the wife of the management of his family. This is effected by inhibition ; which is a remedy competent to every husband, whose wife discovers an inclination to live be.yond his fortune (r). Inliil)ition. — As the wife's right of managing her husband's family is founded entirely on the presumption that he placed her in the position, and as every one may remove his managers. at pleasure, without assigning any reason for it, inhibition may pass against the wife, etiam causa non cognitd, though the husband should not offer to justify that measure, by any actual proof of her want of economy (s). The inhibition is a notice prohibiting the lieges from dealing with the wife without the husband's special authority. It is published by registration in the General Kegister of Inhibitions (f), and by service of a copy on the wife or at her place of residence ; and it is effectual against tradesmen dealing with the wife even although they prove that they never heard of it (u). But the husband may estop himself from relying on it by having expressly or impliedly allowed his wife to pledge his credit after its publication (x). The husband may also terminate his wife's imeposxtura by private notices to the tradesmen dealing with her. These are only effectual, however, in so far as she is provided for aliunde (y). Though a wife may buy on her husband's credit, she is not^ generally speaking, entitled to borrow money ; that not being supposed to fall within the sphere of her agency. But if the iq) Allan )'. Eaii and Countess of (t) 31 & 32 Alct. c. 04, a. IG. Southesk (1677), Mor. Diet., p. 6005. (») Fraser, Husband and Wife, i., (r) Stair's Inst., 1, 4, s. 17 and note ; 633. Ersk. Inst. 1, 6, 26. (.'0 Ker r. Gibson (1709), Mor. (s) Carse r. Bin-ton (1747), Mor. Diet., 6023. Diet., 6024 ; Countess of Caithness v. (y) Ersk. Inst., 1, 6, s. 26 ; Auchin- The Earl (1747), Mor. Diet, 6025 ; leek v. Earl of Monteitb (1675), Mor. Stair's Inst., 1, 4, s. 10, and Diet., 5879. s. 17. 344 PERSONAL CAPACITIES OF HUSBAND AND WIFE. money ^Ye^e borrowed with his consent, declared, or necessarily implied, or has been bond fide consumed in his own family, he will of com-se be liable {z). Neither is a wife entitled to pledge furniture or the like (a). Juridical Capacity. — Pursuer. — Defender. — At common law a married woman could not by herself raise or defend any action, €ven as regards her separate property, from which the J/(6" manti and right of administration were not excluded {h). The rule did not, however, apply when the wife was living separate from her husband, and he refused to lend his concurrence (c), or when his interests were adverse {(J), or he had gone abroad and had not been heard of for years {e). Since the Married Women's Property (Scotland) Act, 1881 (/), a married woman may appear in actions relating to the income of her personal estate or the rents and profits of her heritage, without the husband's consent or concurrence. Trade Partnership. — A married woman cannot engage in trade without her husband's consent (/y), and at common law (/<), and possibly (0 still, in spite of the Act of 1881, the marriage of a female partner dissolves the firm. Married Woman as Witness. — Under the Criminal Evidence Act, 1898 (,y), the wife or husband of the person charged with an offence is a competent witness for the defence at every stage of the jDroceedings under the same conditions as in England (A). Office. — In Scotland a woman cannot be a tutor or curator. Agreement in Derogation of Marital Power. — In Scotland an agree- ment ante-nuptial, or i^ost-nuptial, by which the husband renounces the j»s miiriti or power of administration, is sustained {I). Agreements for Separation. — In Scotland, voluntary contracts for separation between husband and wife, by which the husband settles on (z) Thomi^on r. Homo (1827), 6 Eettie, 375. Shaw, 204 ; Grant v. Ikiillie (1830), (/) 44 & 45 Vict. c. 26. 8 Shaw, GOG. (,v) Ferguson's Trustees r. Willis, (rt) See Twoddel r. 1 )uncan (1S41), Nelson & Co. (1883), 11 Rettio, at 4J Dunlop, 9!»S. p. 2GS. {h) Mackay Manual of i'racticc, {],) Eussell v. llxw^eW. (1874). 2 144. Eettie, 94. ((;) See Ewing r. Cullon (1833), 6 (/) See Encyclo. Scots Law, ud loc. Wils. & Shaw, 566. cit. {) and 1875 (j) S. 12. (ji) 3 & 4 AVill. IV. c. 74. (2) 63 & 64 A^ict. c. 12, s. ,Jl (xxi.). (o) Sclied. to 0. in C. of December («) ,S. 52. 2nd, 1884. {h) Burge, 2nd ed., vol. i., p. 289. (p) 37 & 38 Viet. c. 35. (c) Ss. 16 et seq., and see 13 Vict. {q) 38 & 39 Vict. c. 66. No. 45, s. 8. See also Eegistration of {)■) 42 & 43 Vict. c. 78. Deeds Act, 1897 (Act 22 of 1897), and (s) See further, registration of titles the Eeal Property Act, 190(^ (Act 25 to land. Consolidation 0. in C, 1888, of 1900), s. 109. and Amendment Ordinance, 1896 (No. {2— 61 ; Transfer of ( /■) 2.0 Vict. No. H. Land Act, 1890 (No. 1 H9of 1890), s. 92; (/) S. 17. {d) Laws of Triu., ii., 407, No. 98 (?j) 51 Geo. III. c. 15 (1810) ; (revising and consolidating Nos. 21 17 Vict. c. 11 (1854) ; acknowledging of 1855, 7 of 1865, 3 of 1879). deeds and renunciations of dower (e) No. 5 of 1885. (36 Vict. c. 9 (1873); 56 Vict. c. 15 (./') Nos. VL of 1886, ss. 49—52,. (1893) ; 61 Vict. c. 7 (1898) ). 7 of 1904, s. 3 (insurances). (a) Conveyances of real estate and 350 PERSONAL CAPACITIES OF HUSBAND AND WIFE. invested in the purchase of lands and of an estate therein, and release and extinguish jjowers as a. feme sole (g). Acknowledgment of such deeds (li) and of assignments of legacies, &c., bj^ a married woman is necessary (i). A married woman may, with her husband's ■concurrence, dispose by deed duly acknowledged of her reversionary interest in personal estate, and release her right to a settlement out of such estate in possession. This power does not extend to marriage settlements (A). The Court of Chancery may, with a married woman's consent, where it appears to be for her benefit, bind her interest in any property notwithstanding a restraint on anticipation (/), In British Honduras, the husband's concurrence and the wife's acknowledgment are required in case of applications for the registration of title to land (di). In the Falkland Islands, the acknowledgment of deeds by married women was formerly governed by Ord. 3 of 1853. But that ordinance was repealed by No. 6 of 1904, which simplifies •conveyance, providing statutory forms of conveyance. In Fiji, the Court may appoint some person to act as next friend of a married woman, for the purpose of applications for registration of title to land (h). In Sierra Leone, Ord. 10 of 1883 (o), dealt with acknowledgments by married women. But the whole of that ordinance has now been repealed by No. 23 of 1906, which lays down (p) general rules as to the acknowledgment of instruments relating to land for the purpose of registration of title. Similar provision has been made for the acknowledgment of deeds affecting land in Gambia (q) and Gold Coast Colony (r). 1 United States. — The common law of England, in relation to the powers and capacities of married persons, has been abrogated in nearly all of the States. In eleven jurisdictions, including New York and Ohio, married women have been given absolute control over their property, as if unmarried (.s). In eleven others, includ- ing Massachusetts and Pennsylvania, the general principles of {(j) No. 2ij of l.S'Jl, s. -lO. (») No. 7 of 1876, p. 110. {h) S.40. (") S. 11. (/) S. 41. Ah to how acknowledg- {]>) S. 14. ineiitB are taken, see es. 44 — 51. (7) No. 5 of 1880, s. 8. (/c) S. 42. ('•) No. 1 of 1895, ss. 7 et se). Under the joint effect of s. 375 of the Indian Penal Code (c), and s. 1 of Act X. of 1891, a man who has sexual intercourse with his wife, being a girl under the age of twelve years, ma}^ be convicted of rape. Under the Muhammadan law, fornication by a married person is punishable with death, and by an unmarried person of either sex, with scourging (d). In British India, however, a wife who commits adultery incurs no other penalty than forfeiture of any maintenance which has lieen allowed to her ; while a husband incurs no liability at all, unless his conduct could be regarded as amounting to "cruelt}^" in which case his wife would have the right to refuse to live with him, Avithout forfeiting her claim to maintenance (e). The Muhammadan law is less strict than the Hindu law as to conditions which are derogatory to the ordinary incidents of marriage. Mr. Ameer Ali (/) enumerates the following as being (/.') Wilson, ithi rif. supra, s. 53. (a) Baillie, i., 4;38. (/) As to which, see Burge, vol. i., (h) Code of Civil Procedure (Act pp. 587, 588. V. of 1908), Ch. I. 0. 21, r. 32 ; ()?i) See p. 757, post, Moonshee Buzloor Biiheein /'. Slium- (/^) Code of Criminal Procedure, soonuissa Begum (1807), 11 Moo. Ind. 1898 (Act V. of 1898), s. 488. App. 551. {(>) Koran, iv., v., 40. (c) Act XLV. of 18(50. (p) See ss. 79, 319 of the Indian {d) Wilson, Diget^t, note to s. 52. Penal Code (Act XLV. of 1860) ; and (e) Jl'id. note 2 to s. 51 in Wilson, Digest. (/) Mahomedan Law, vol. ii. (2nd {(]) See pp. S97 d sfp ed.), p. 312. . 28—2 356 PERSONAL CAPACITIES OF HUSBAND AND WIFE. valid ante-nuptial conditions: " (^) That the husband shall not contract a second marriage during the existence or continuance of the first, (b) That the husband shall not remove the wife from the conjugal domicil without her consent, (c) That the liusband shall not absent himself from the conjugal domicil beyond a certain speci- fied time, (d) That the husband and the wife shall live in a specified place, (e) That a certain portion of the dowr}' shall be paid down at once or within a stated period, and the remainder on the dissolution of the contract by death or divorce, (f ) That the husband shall pay the wife a fixed maintenance, (g) That he shall maintain the chil- dren of the wife by a former husband, (h) That he shall not prevent her from receiving the visits of her relations whenever she likes." In the cases of Hindus and Muhammadans, as in the case of other persons residing in India, a wife would, in the absence of a l^rohibition by law, be entitled to pledge her husband's credit for necessaries supplied for her support or for that of the family (g). The laws of Burmah, China, Japan and Siam may be brieti}^ referred to in connection with this subject. Law of Burmah {It). — By operation of law, certain legal incidents follow on the creation of the status of husband and wife. The control of the household, the children, and family property is vested in the husband, but he cannot exercise such power in an arbitrary manner and without due regard to the opinions of his wife. In the family interests the wife, if not regarded as an equal partner, certainly does not occupy the unimportant position that women have in most Oriental countries. If she be the bread-winner of the family, as frequently happens, her wishes will be by no means subservient to those of her husband. The husband is bound to maintain his wife and children, and the assistance of the law can be obtained to compel the observance of his duties. As. under English law, he is liable also for necessaries supplied to his wife. A wife, however, commits a fault if she lives apart from her husband for no sufticient ground, and in such an event she can claim no maintenance. Neither can she claim it if she have means of her own. The other rights and duties which the husband and wife have are common to all civilised systems of law. (-viiini Chotti (186;J), 1 MirJ. Moun- Tun Luin, K.S.M., Ilunguou. LAW OF CHINA AND JAPAN. 357 Law of China (fO- — The effect of marriage is to briii}^ tlie wife into the ))ianus of the husband, as at Eome, and to make her a memlier of his family. Chinese women live in such seclusion that the question of the liability of a husband on a wife's contracts cannot often arise. When it does the Court would be guided very much by the circumstances of each case. The husband is not liable for debts contracted by his wife before marriage, unless she was sui juris and liad no family when he married her. Law of Japan. — Under the Civil Code, as regards the effects of marriage, the wife by marriage enters the husband's family. A wife is bound to live with her husband, and a husband must cause his wife to live with him. Each is bound to support the other. If the wife is a minor, her husband, if major, exercises the duties of guardian over her. A contract made between spouses may be cancelled by either party at any time during the marriage, but the rights of third parties must not be prejudiced (aa). As regards third parties, the wife requires the authorisation of her husband in order to (1) receive or employ capital ; (2) contract debts or guarantee other persons' debts ; (3) perform acts involving the acquisition or loss of rights with regard to immovables or valuable moval)les ; (4) institute legal proceedings ; (5) enter into contracts with regard to donations, amicable arrangements, or arbi- tration, or contracts subjecting her to personal restraint ; (6) accept or refuse accessions, donations, or bequests. If she is allowed to engage in business she has the capacity of an independent person with regard to it. A husband can cancel or restrict such an autho- risation, but such act of his cannot be set up against a third party who has acted in good faith. The wife does not require his authorisa- tion where it is uncertain whether he is alive or dead, or wlien he has deserted her, or has been interdicted from managing her or his own property, or is under restraint as a lunatic, or is undergoing a term of imprisonment for a year or longer, or where his and her interests are in conflict. If he is a minor he cannot authorise his wife's acts, except according to article 4, i.e., with the consent of hia legal representative. Provision is also made for the ratification of (a) This account is contributed Ly Civil Cotle of Japan (1899), Part II., Mr. J. Bromley Eanios, l>arrister-at- 26, 27. For rights as to pi'operty, law. see arts. 798 — 807. {aa) C. C, arts. 788—792 ; Gubbins' ^58 PERSONAL CAPACITIES OF HCSJ3AXL) AND WIFK. acts which are capable of being cancelled if the right is not exercised within a certain time ; if a person without legal capacity uses fraud for the purj^ose of inducing belief in his legal capacity, he cannot cancel an act so performed (//) . Law of Siam (Jih). — The wife is l^ound to submit to the husband, though it is doubtful if he can compel her to live with him against her will. He is bound to support her in the position which his wife ought to occupy, and failure to do so is a ground for divorce (c). The husband is liable, generally speaking, for all the contracts and torts of his principal w^ife (d) ; but the modern tendency of the Courts is to restrict the right of the wife to enter into contracts wdthout her husband's consent, unless they are for the purposes of their joint living, thus importing rules of partnersiiip law into the relationship. As far as minor wives are concerned, their contracts require ratification in order to make the husband liable, and he is not fully responsible for torts committed by them (e). The preceding observations are intended to apply to those civil capacities and incapacities of married persons wbich are strictly personal, and relate to personal contracts, and not to those which regard the administration, sale, hypothecation, or other disposition of their property, or the liabilities of the husband and wife, and the property of either, in respect of debts contracted b}- them before their marriage, or during the coverture. It is conceived more proper, that the latter species of capacities and liabilities should be considered in connection with the rights of the husband and wife in the property of each other. It will be found that the selection of the law to which the decision of those capacities, liabilities, and rights should be referred will Ije greatly influenced by their relation to property, real or personal. (/') C. C, arts. 12—20 ; Gubbins, (c) Pbua Mia, Art. 74. ■iilii at., Part I., 4 — 8. {d) Laksaiia Kooni, 1\. r. Paa, Dika, {bh) This account is contributed by 745, 128. lI.E.ir. Prince Eajburi Direkhedcli, [c) Laksana Kooni. Minister of Justice, Bangkok. CHAPTER YII. PERSONAL CAPACITIES OF HUSBAND AND WIFE — PRIVATE INTERNATIONAL LAW. The place in which the marriage is celebrated may not be that of the domicil of either of the parties before, or at the time of, or after the marriage, or the place where they are resident after the marriage. It may have been resorted to for no other purpose than that of celebrating the marriage, and they may have quitted it when the ceremony was performed. The domicil of the wife may not have been in the same country as that of her husband. As the laws of the several places in which the marriage was celebrated and in which the parties were domiciled or are afterwards resident may, in respect of the powers which they confer on the husband, and the incapacity to which they subject the wife, be at variance with each other, it is necessary to ascertain which of these conflict- ing laws ought to prevail in deciding on the powers, capacities, and incapacities incident to their status, whether inter se or as regards third parties {a). The present chapter deals with the personal capacities and incaiDacities of married persons, leaving the consideration of their proprietary rights against each other and against third parties to be dealt with subsequently {!>). It will be seen that the two branches of the subject are not now, as was formerly thought, governed by the same law, viz., the law of the matrimonial domicil (r), l)ut the former is governed by the parties' personal law(fO- But this, being the husband's personal law, is not allowed to prejudice the rights of the wife or the interests of third parties. The principal points on which it is necessary to ascertain what is the proper governing law are : (1) the personal capacities of the spouses generally ; (2) the limitation of the husband's marital power ; (3) the limitation of the wife's capacity. I. Personal Law (not Lex Loci Celebrationis) Governs Personal Capacities of Spouses Generally. — The question whether the status (a) Burge, 1st ed., i., 244. {<■) See Burge, 1st ed., i., 24() 2.51. {!>) Chapter XV. {d) See p. 3G0, post. 360 PERSONAL CAPACITIES OF HUSBAND AND WIFE. has been constituted by means of a legal marriage is perfectly distinct from the consideration of the rights, po^Yers, and capacities which the status confers. The inquiry whether the status has been constituted has been, as already pointed out(fO, answered in the largely preponderating number of legislations, jurisprudences, and juristic authorities by making it dependent on the personal law of the jDarties so far as essentials are concerned and on the lex loci celebrationis so far as formalities go, though the older view still prevailing in the United States and adopted by Burge, and again favoured by recent English decisions (h), referred the validity of the marriage in respect of all matters to the latter law. Even adopting the latter view, however, Burge was of opinion that the connection of the parties with the law of the country where the marriage is contracted ceases, unless that place be the domicil of the husband; and then its law governs, not because the marriage was celebrated there, but because it is the country of the husband's domicil. The parties, if they do not 1\y an express agreement on their marriage stipulate as to their future rights and capacities, are presumed to submit to them as they have been defined by some municipal law ; and the law which it is pre- sumed they contemplate is not that of a country in which they have no intention to reside, and to which, therefore, their status cannot be subject, but that of the country in which, as it is the place of their domicil, their rights and capacities are to be exercised (r). A fortiori, in the former view, the personal law governs the personal relations of the spouses to each other and to third parties. Older Jurists. — Surge's Opinion. — The civil law adopted the pre- sumption that the law of the domicil should govern the future personal capacities of the spouses (, 2(i.'>. (<) Burge, 1st ed., i., I'll, 246. (h) Ogdeii r. Ogdon, [lt»()8] P. 4(5; (09] 1'. b2, aud eeo tit. 6, 1. a. pp. 240 rl «-/., 2.'J(». PERSONAL LAW (OF HUSBAND) GOVERNS. 361 ■wife, even before she leaves her residence, ceases to retain lier former domicil, and acquires by her marriage that of her hnsl)and. No regard, therefore, is had to the law of the country in which the wife was domiciled at the time of her marriage, unless the husband abandons his former and establishes his future domicil there (e). Husband's Personal Law Governs. — The law of the countrj^ where the husband is domiciled before his marriage will not be that to which resort is had if on his marriage he abandons it and selects a new domicil in the country of his wife's former domicil or in finy other country. AVlien, therefore, the husband at the time of his marriage abandons his former and selects a new domicil, the law of the latter is that to which resort is had in deciding on the rights and capacities of the hus])and and wife (cc). Ignorance of Wife of Law of Husband's Domicil Immaterial. — By some jurists it has been considered tliat the rule excluding the law of the wife's domicil ought not to be applied if she has contracted her marriage in ignorance of the law of her husband's domicil and in the confidence that her rights would be governed by that of her own domicil. Such an exception has not, however, been enter- tained. Wesel condemns it : '" Scire enim debuit statuta loci quo migrat, quseque, sequendo forum mariti, approbasse intelligitur. Et quia credat, vel mulierem, vel nuptiarum arbitros et pararios tam oscitanter et negligenter matrimonium contrahere, ut non ante inquisiverint in mores et consuetudinem domicilii mariti quo migratum iret? Videmus enim non raro et compendii causa nuptias contrahi " ( /"). Schrassert, in stating it to be the universal rule, '• Inspiciendam €88e consuetudinem ejus loci, ubi tempore initi matrimonii maritus liabuit domicilium," adds, " hie enim in matrimonialibus habetur pro loco contractus, taiii in xgnoyante niuUerc, qiidm sciente, et tam respectu rerum, quam personarum " {[i). Boullenois also rejects such an exception : " En vain voudroit-on dislinguer entre la femme qui a ete rendue certaine des loix du •domicile de son mari, et celle qui ne I'a pas ete. Toute femme est presumee s'en etre fait instruire ; ses parents, ceux qui s'entre- (<■) Biirge, 1st ed., i., 245. Bee jwsf. 12, n. 339 ; A. "Wesel, de Conn. Bon. €()de Civil, art. 108 ; Wharton, s. 43. Soc. Tr., 1, n. 102, p. 37 ; Goris, Adv. (pf ) Burge, iihi cit. siq^. Tr., 1, c. 6, n. 8. (/) Burge, 1st ed., i., 2.51, citing [g) Schrassert, obs. 233, n. 1 : Burge, Mev. ad Jus Lub., part. 1, tit. 10, art. 1st ed., i., 2.32. 362 PERSONAL CAPACITIES OF HUSBAND AND WIFE. melent pour lui procurer un etablissement, sont presumes le faire pour elle ; efc si elle ne Ta pas fait, elle doit se I'imputer : elle est, en cette partie, assujettie au droit commun, qui veut que celui (jui contracte, connoisse la condition de la personne avec qui il contracte, et la presomption est, qu'embrassant le parti du mariage et s'identifiant en quelque maniere avec son mari, elle adopte plutot les loix selon lesquelles elle va etre obligee de vivre dorenavant, que des loix auxquelles elle se met elle-meme dans la necessity de renoncer. ' Praesumuntur sponsa et facientes pro ea scivisse consuetudinem, vel statutum domicilii viri, tum quia notorium, turn per legem, qui cum alio contrahit, ff. de reg. juris. Quod si scire, vel taliter pacisci neglexerunt, perinde est ac si scivissent sibique imputare debent. Mol. Cod. de Stat.' Et suivant Mascardus, ' contractus liujusmodi, prout sunt matrimonii, fiunt cum magna inquisitione, quae inquisitio tollit praesumptionem ignorantia^. Conel. 7, n. 67, de gen. stat. interpr.' " (/;). On Change of Parties' Domicil, Law of New Domicil Governs. — The husband and wife niAj have abandoned the country whicli was the place of their domicil at the time of their marriage and have acquired another domicil, and there may be a contrariety between the laws of their present and former domicil. In this con- flict the question will arise whether the capacities and incapacities which are incident to their status according to the law of their former domicil are permanently retained by them, or whether they are subject to be varied by their change of domicil. Whatever contrariety of opinion may exist respecting the effect of a change of domicil on rights of property acquired under the law of the matri- monial domicil, there is a general concurrence amongst jurists in holding that although the law which confers those rights, powers, and capacities is strictly a personal law, yet its influence exists so long only as the parties remain subject to it by retaining their matri- monial domicil. When they quit that domicil and establish another their status is governed by the law of the latter, and their capacities and powers are those which that law confers. Such is the doctrine of Eodenburg, " Fac igitur virum, qui per loci leges, ubi degit, uxorem habeat in potestate, collocare domicilium alio, ubi in potestate virorum uxores non sunt ; vel vice versa. Dicendumne erit induere uxorem potestatem, qua prius liberata, et {h) Boullenois, torn. 2, part 2, tit. 2, c. 4, obs. 38 ; Burge, 1st ed., i., 2o2, 203_ LAW OF NEW DOMICIL GOVERNS. 363 exuere, cui alligata erat '? in affirmativam sententiam deduci videmur per tradita Bergund (i). Efc recfce ; persona) enim status et conditio cum tota regatur ;i legibus loci, cui ilia sese per domi- cilium subdiderit, utique mutato domicilio mutari et necesse est person;!' conditionem " (A). J. Yoet, after laying down the rule that the wife's rights and capacities are those which are conferred by the law of her husband's domicil, however injurious they may be to her interests, treats of the effect of his change of their domicil. " Neque aliud dicendum erit, si forte vel ex necessitate relega- tionis, vel sua voluntate, maritus domicilium transferendo deteriorem redderet uxoris conditionem, ob auetam ex novo domiciho mariti potestatem, qua? in pristino minor erat ; aut ob id, quod ex domicilii lege conjugibus permittitur sibi invicem ultima voluntate gratificari ; cum id prioris domicilii jure appareret inhibitum ; ac frustra uxor fuerit, aut hperedes ejus, si pro2:>terea a migrante marito id, quod interest, putarent, exigendum esse. Cum enim per nuptias uxoris quidem conditio deterior fiat, dum ilia, antea sui juris rer unique moderatrix, maritali subjicitur potestati ac tuteloe ; maritus autem suam conditionem per nuptias non deteriorem sed plerumque meliorem reddat, aut saltern non imminuat liberum illud, quod ante nuptias habebat, arbitrium ; absurdum foret, ilium, cui antea libera competebat migrandi facultas, nunc matrimonio contracto destitui ilia migrandi licentia, aut saltem metu poenre et j^raestationis ejus, quod interest, absterreri, ne eo migret, quo forte vel dignitatis obtinendpe spes, vel valetudinis reive familiaris ratio, aliave plura vocare videbantur ac invitare " (/). Boullenois maintains the same doctrine. " Quant au statut qui met la femme sous la puissance de son mari, il est du nombre de ceux qui, selon moi, dependent absolument du domicile actuel, et qui n'affectent les personnes, qu'autant de temps qu'elles sont domicihees dans I'etendue du statut, de sorte que la femme changeant de domicile, pent cesser d'etre sous rautorito de son mari, et elle pent y retomber, si elle retourne dans son premier domicile, ou dans un autre semblable " (m). {>) D. Tract. 2, ii. 7. n. 101. (/c) Rodenburg, De Jure, tit. 2, c. 1, {m) Boullenois, toin. I, tit. 1, c. 2, p. 105. obs. 4, p. 61. These authorities are (/) A'oet, do Judiciis, lib. 5, tit. 1, cited by Burge, 1st ed., i., 2J4. 364 PFRSOXAL CAPACITIES OF IICSBAND AND WIFE. " His positis, ime femme domiciliee en Hollande, qui aura contractc sans autorisation, et dont I'obligation n'est pas nulle, va depuis s'etablir dans un autre endroit ou le defaut d'autorisalion annulle lea engagements de la feinme ; cette femme pourra n^an- raoins etre poursuivie apres le deces de son mari, pour raison de I'obligation qu'elle aura contractee en Hollande, parce que c'est le lieu du domicile on I'obligation a ete contractee, qu'il faut unique- ment regarder. C'est la loi de ce lieu qui a decide de son ^tat personnel, et par consequent de la validite de son obligation. Le changement de domicile change les habitudes civiles que nous ne tenions auparavant que de la loi de I'ancien domicile, mais ne sauroit annuller ce qui est bon dans son principe " (/<). Froland also adopts this doctrine in relation to personal capacities. " Mais quand il est question de I'habilite ou de I'inhabilite de la personne qui a change de domicile, a faire une certaine chose, alors le statut qui avoit regie son pouvoir tombe entierementa sonegard, et cede tout son empire a celui dans le territoire duquel elle va demeurer. " De la vient que la femme qui a son domicile dans le pays du droit ecrit, ou en Normandie, et qui vient s'etablir li Paris, ne pent plus exciper du Yelleien ; et que celle au contraire qui fait sa residence ordinaire en cette ville, ou autres lieux oii I'edit de 1606, qui a abroge cette loi Romaine, est observe, allant demeurer en Normandie, ou dans le pays de droit ecrit, perd toute la capacite qu'elle avoit, et ne pent plus interceder pour autrui, ni s'obliger avec son mari. " Que celle qui ne s^auroit faire aucun acte sans I'autorisation expresse de son 6poux suivant la coiitume du lieu ou elle reside, se retirant avec lui dans un pays ou la loi n'est pas si rigoureuse, devient plus libre qu'elle n'etoit auparavant ; et vice versa. " Que la femme domiciliee sous une coutume, qui ne lui permet pas de tester sans le consentement et I'autorite de son mari, choisissant pour nouvel ctablissement un endroit dont la coutume n'a point de disi^osition semblable, acquiert une pleine et entiere liberie de disposer de ses biens, sans la participation de son mari ; et vice versa. "Que celle (pii par le droit municipal de la province oii elle fait son s6jour actuol ne pent co]itracter ni aliener sans le consentement («) I'xmllonuls, toin. 1, tit. 1, c. 2, obs. 1, p. (il ; see Burge, 1st ctl., i., 2). Pothier has expressed the same opinion ( /'). It should be observed that this doctrine has been thus controverted by Bouhier. "On demeure presque generalement d'accord, que la loi du domicile matrimonial determine I'etat de la femme, et par conse- quent I'etendue du pouvoir qu'a le mari sur elle ; et Ton ne voit pas. comment cet etat, une fois determine, pourrait changer par une simple translation de domicile faite jDar le mari. Une femme, qui ne peut rien faire sans I'autorite de son mari, deviendrait tout d'un coup, par un changement de domicile, libre de cette sujetion, et ensuite y retomberait, si son mari retournait dans sa premiere demeure. L'etat des femmes dependrait du caprice des maris. Quoi ! une femme a contracte sur la foi d'une coutume qui lui permet la libre administration de ses paraphernaux, meme de tester de ses biens sans I'autorisation de son mari ; et cette femme serait privee d'un aussi precieux avantage par un changement de domicile qu'elle ne peut empecher ? Ce serait heurter de front la regie qui ne permet pas qu'on nous enleve, sans notre fait, un droit qui nous appartient ; et voila pourtant le principe des partisans de I'opinion contraire. On ne peut pas dire que la femme se soumette, meme tacitement, aux lois du nouveau domicile ; elle ne fait qu'obeir " (q). The opinion of the President Bouhier was adopted by Merlin and maintained with great zeal in the first edition of his work. He has,^ in a subsequent edition, to which a reference has been already (o) Froland, torn. 1, p. 17'2. ((/) C. 23, n. 3. These authorities, (p) Pothiei', Introd. torn. 10, tit. 1, are cited by Burge, 1st ed., i., 2j(), 1). 13, p. 3. 2.37. 366 PERSONAL CAPACITIES OF HUSBAND AND WIFE. made, retracted it, and admitted that the status, its rights and capacities, must be decided with reference to the law of the actual ^lomicil {)■). Modern Opinion Adopts Personal Law. — The conclusion in favour of the personal law thus reached by the great majority of jurists ]ias been established in the modern systems of law and jurisprudence, which mostly adopt the national law for this purpose. Thus in France and Belgium the capacity of persons to marry and the modifications which the marriage exercises on the capacity of the parties belong to the statuf jj(?r.so»n?/(.s), and the statiit per- aonnel is governed by the nationalit3\ Thus French and Belgian law governs the capacity of their citizens when abroad. " Les lois con- cernant I'etat et la capacite des personnes regissent les Francais meme residant en pays etranger " (f) ; and consequently a French citizen cannot in the eyes of French law make or do any legal act which he would be incapable of doing in France, although by the foreign law he would have sufficient capacity for the purpose, and a marriage contracted in a foreign country by a French citizen not having the required capacity in France will be treated as null there, however good it may remain in another country (/()• The disposition contained in the 3rd par. of art. 3, Code Civil, is extended b}' analogy to foreigners residing in France who are governed as concerns their civil status and capacity by their national law (x). (?•) Burge, 1st ed., i., 207 ; Merlin, Locie, Leg., i., p. o99, n. 10. Lors torn. 1, s. 10, pp. 532, 533. de la communication ofEcieuse, le (s) Aubry et Eaii, oth ed., vol. i., Tribuiiat tronva que, meme ainsi p. 135. amendee, cette redaction etait encore (<) Code Civil, art. 3, par. 3. trop vague et pouvait preter a des (») Aubry et Kau, /or. cif., p. 142. raisonnements faux et daugereux. II [x) "En effet le projet du titre jiroposa done de restreindre la portee preliminaire du Code contenait uue de la disposition dont s'agit aux lois disposition ainsi congue ' La loi oblige de police et de suretc, et de la faire iiiih'stiiatemeiit ceux qui babitent le suivre immediatement, pour mieux en territoire ' : Voy. Locre, Leg., i., p. 380, fixer le sens, de deux autres disposi- art. 3. Dans la seance du Conseil tions qui originairerneut placeos au d'liltat du 14 Thermidor an ix le mot titre de la /oiiissance des droits cirils, indistinctement fut retrancbe sur la rappelaient evidemment la distinction demande de Tronchet qui faisait du statut reel et du statut personnel, ieniar([ucr que la redaction etait telle qu'elle avait toujours ete recue en trop generate, puisque les etrangers ]"' ranee : Yoj'. liocre, I^eg., i., p. 5G3, ji'etaient i)a8 soumis aux lois civiles n, 9. Cette proposition fut adoptee, qui reglcnt I'etat des personnes : Voy. et amena la redaction definitive de I'arl . BUT CHANGE NOT TO PREJUDICE WIFe's RIGHTS. 367 Where the spouses are of different nationality preference is to be given to the law of the husband's nationality (?/), and a change of nationality is not considered to have effect on private rights (z). II. Limitation of Husband's Marital Power. — Change of Personal Law must not Prejudice Rights of Wife. — Modern jurists have, how- ever, formulated a reservation in favour of the wife's rights not being prejudiced by the husband's changing the matrimonial domicil or their personal law after the marriage. " The effect of marriage on the status and capacity of the wife ... is governed l>y the law of the nationality jjossessed by the hu.s])and when the marriage was contracted " ; the rights and duties of the husband towards the wife and of the wife towards the husband are recognised and protected according to the national law of the husband except for the restrictions of public law at the place of the spouses' residence, but they cannot be enforced except by means allowed equally l)y the law of the country where they are demanded. If the husband only changes his nationalit}'' the relations of the spouses remain governed by their last national law(^0. In the German Code the personal relations of German spouses towards each other are determined by German law even though they have their domicil abroad, and even if the husband has lost German nationality but the wife has retained it (b). Foreign spouses ) Civil Code, Introd. Law, art. 14. 368 PERSONAL CAPACITIES OF HUSBAND AND WIFE. marriage become subject to s. 1357 of the German Civil Code so far as tliis is more favourable to third parties than the foreign laws (c). The same Code allows a wife to refuse to follow her husband's domicil in certain events ; while the French and Italian Codes do not seem to contemplate her as ever being capable of acquiring a domicil distinct from that of her husband unless she has obtained a judicial separation from him ((0- From this change of domicil the French and Belgian Courts infer that the parties had the intention that the law of their new domicil should govern the marital regime. The jurisprudence of the Courts is not, however, definitively fixed in this sense. The Swiss Code permits a wife to acquire an independent domicil if that of her husband is not known or if she has the riglit to live away from him {c). In the United States a wife can, it seems, acquire a domicil distinct from that of her husband, or retain one which he has changed for another, for purposes of self-protection, e.g., obtaining divorce or separation (/), but not otherwise, and her domicil is that of her husband unless his be a compulsory one ( /'). But although this is doubtless the doctrine of a preponderating number of adjudicated cases up to this time, there is a new tendency to 1)6 discerned in recent cases, in harmony with the extension of the rights of married women lately accomplished by statutory law. In this line of cases the determining feature which decides whether a married woman living in fact in a State difierent from the domicil of her husband does, or does not, partake of the domicil of her husband, is whether the separation itself amounts to a disturbance of the unity of the married relation. This applies irrespective of which party was at fault, and is not restricted to :lomicil for the purpose of obtaining a divorce (V/). The modern doctrine as thus stated is asserted with much more assurance where the separation was due to the husband's fault. Thus it has been held in New Hampshire that the misconduct of the husband {<■) Civil Code, Introd. Law, art. 16. Law of 1891, art. 4, and Bader's Coiu- {d) German Civil Code, s. 10; French nientary thereon (p. 19, 4th edition). Code Civil, art. 108 ; and see arts. (./') Wharton, es. 43 — 4j. 212—214; Italian Cod. Civ., art. IS; { ; 36 Atl. 282. of domicil, 189;3, J. 599. (?■) Bar, 379; Weiss, iii.,. 501 ; Fraser, («) Connelly v. Connelly (1851), 7 Husband and Wife, 1318; Wharton, Moo. P. C. 438; Yelveiton v. Yelver- s. 120, citing Polydorev. Prince (1837), ton (1859), 1 S. & T. 574; Firebrace 1 Ware, 413. v. Firebrace (1878), 4 P. D. 63 ; Linke {k) Trib. de la Seine, 1879, J. 489 ; ;;. Van Aerde (1894), 10 T. L. E. 426 ; and Cour de Paris, 1880, J. 300 ; Le Mesurier v. Le Mesurier, [1895] Weiss, iii., 505. A. C. 517 ; Armytage v. Army- {l) Weiss, iii., 503, citing 1880, J. tage, [1898] P. 178, 185; Brennan v. 189; as against 1879, J. 170. Brennan (1902), 18 T. L. E. 467. No (m) Bar, 380 ; 1879, J. 66; Feraud- alimony is claimable where the mar- Giraud, 1885, J. 392; Wharton, s. riage was null- 1896, J. 649. 120. The scale of alimony will not, it M.L. 24 370 PERSONAL CAPACITIES OF HUSBAND AND WIFE. that the Court of the residence of the spouses can decree a separa- tion of property only, even perhaps (though decisions conflict) if they were married under a law which did not create community of property (o). In France, although the Courts will not, as a rule, take cognisance of questions where both parties are foreigners and are able to resort to their national Courts, they will entertain api^lications for alimony (though not perhaps to the extent recognised by French law in the case of its own subjects (p) ) and they will grant protection in such cases, and will give an injured wife custody of the children, pending proceedings in the country of the parties, and decree separation, though not by mutual consent (q). The Italian Courts in cases where they cannot pro- nounce a judgment permanently affecting the rights of foreign spouses, have similarly authorised a wife to leave her husband's house (?•)• In Scotland the Courts have declared themselves com- petent to hear applications for sei)aration and aliment though the residence of the spouses does not amount to a matrimonial domicil (s). Donations inter Conjuges. — Weiss cites as a subject for the appli- cation of the j)ersonal law of the spouses the case of donations intei- conjuges, which by the Italian law are forbidden except by will, and by the French law are allowed under certain conditions but -are revocable, made either by Italian spouses in France or French spouses in Italy ; the French Courts would then apply the Italian and the French laws respectively, unless the donation related to land, when perhaps the lex situs would govern {t). (o) Lafleur, C. L. 89—91. Bar, Gillespie, 452. (p) Lavarello v. Eerrandez, 1894, (t) Weiss, iii., 509; Italian C. C. J. 874; but Weiss doubts this. 1054; French Code Civil, art. 1096 {q) 1879, J. 489; 1876, J. 184; 1892, J. 940; 1891, J. 50S ; 1894, 1878, J. 494, 495 ; 1880, J. 300, '603 ; J. 562; 1901, J. 775. In Belgium the 1877, J. 45; 1881, J. 526; 1883, J. law is the same as the French. Weiss 629; 1885, J. 185 ; 1890, J. 297 (ali- would apply the personal law even in mony), 890 (separation) though the the case of land (i., 511), and so would contrary view was formerly held; Clunet, 1891 J. 511; and Lafleur see 1889, J. 474 ; Clunet, 1876, J. thinks it would be applied in Quebcf, 220; but not if by mutual consent: 113, 114; it would be applied in 1904, J. 188; Bar, Gillespie, 380, 381, Germany (Wharton, s. 202) ; but in 450 — 452. England the lex situs must be satisfied (r) Milan, C. A., 15 Feb., 1876; as to cajxicity : Dicey, 501. Bank of For. Stat., 1870, I. 431 ; 1876, J. 220. Africa v. Cohen (1909), 25 T. L. 11. («) Fraser, Husband and Wife, 1295 ; 285 ; W. N. 50. CAPACITY OF WIFE TOWARDS THIRD PARTIES. 371 Where the spouses are of different nationalities each must be caijable bj^ his or her personal law of making such a gift (k). III. Capacity of Wife as regards Third Parties. — The country in which a married woman may contract an obligation may not be that of her husband's domicil, and by the law which prevails there the autliority of the husband may be more or less extensive, and the incapacity of the wife greater or less than it was by the law of his domicil. Older Jurists Favoured Wife's Personal Law. — According to the doc- trine held by the older jurists, the wife retains the incapacity to which she was subject by the law of the husband's domicil or nationality, and therefore the validity of an obligation in respect of her cajjacity, and of the nature of the authority to be given by the husband to enable her to act, must be determined by that law, and not by the law of the place in which the obligation was contracted. Eodenburg's language is " Uxores domi sub maritorum potestate ita constitut^e, ut sine iis nee alienent nee contrahant, nullibi locorum banc incapacitatem exuunt. Cum mulieris contrj'i juri scripto obnoxiee contractus, apud nos celebratus, consistat omnimodo" (,r). Boullenois adopts this opinion : " Quand la loi du lieu du contrat porte des dispositions qui ne viennent pas de la propre nature du contrat, mais qui ont leur fondement dans I'^tat et condition de la personne, il faut suivre la loi qui regit la personne, et dont cet etat depend. " Par exemple, un mari est domicilie dans un lieu ou il n'oblige pas sa femme, s'il contracte seul et sans elle, quoiqu'elle soit sous sa puissance et sous son autorite, ce mari vient contractor dans un lieu ou, a raison de cette autorite, il oblige sa femme en s'obligeant lui-meme, elle ne sera pas pour cela obligee, parce que I'obligation de la femme ne nait pas de la nature du contrat, ni de I'endroit ou son mari a ete contracter ; mais de I'autorite maritale, qui n'a pas cet effet dans le lieu du domicile du mari. " C'est par cette distinction que Maevius, loco cit., decide I'espece que nous venons de rapporter. ' Ratio patet turn quia non ex contractu mariti uxoris nascitur obligatio, sed ex societate conjugali, et statuto non informante contractus maritales, tum quia maritus contrahendo, foro et statutis se, subjicit, quoad contractum, non (m) Weiss, iii., 512 ; 1892, J. 940 (a;) Eodenbiirg, de Jure, tit. 2, c. 1, Ti. 1 ; Bulge, 1st ed., i., 257. 24—2 372 PERSONAL CAPACITIES OF HUSBAND AND WIFE. autem mulierem insontem sine facto suo ad alias quam domicilii leges obligare valet ; turn denique quod in illo loco nulla actio contra uxorem intentari potuit, ergo nee executio ' " (^O. Pothier concurs in it. " Les lois, qui reglent les obligations des personnes, telle qu'est le Velleien qui ne permet pas aux femmes de s'obliger pour autrui, sont des statuts personnels, qui exercent leur empire sur toutes les personnes qui y sont soumises par le domicile qu'elles ont dans le territoire, en quelque lieu que soient situes les biens de ces personnes, et en quelque lieu qu'elles contractent. C'est pourquoi si une femme, domiciliee en Normandie, se rendait caution pour quelqu'un, quoique Facte du cautionnement fut passe a Paris, ou le Velleien est abroge, le cautionnement serait nul. " Mais quoiqu'une femme ait 6te mariee en Normandie, si son mari a transfere son domicile a Paris, cette femme ayant cesse, par cette translation de domicile, d'etre soumise aux lois de Normandie, les cautionnemens, qu'elle contractera depuis cette translation de domicile, seront valables " (h). Surge's View (c). — The propriety of leaving to the decision of the law of their domicil the validity of the wife's obligations, when it depends on her capacity to contract them, is founded on similar con- siderations of public policy and general convenience to those which, in cases raising the question of the validity of a marriage, have established as jus gentium the rule that the question is to be deter- mined by the law of the country in which the marriage has taken place. It is more consistent with reason, as well as convenience, that the personal capacities resulting from the status should continue to be those which are attached to it by the law of the country where the parties have a permanent residence, than that they should be subject to be varied, when the parties had casually, and for a tem- porary purpose, visited a country where a different law prevailed. There is little inconvenience in requiring that a person who deals with a female, who, from her sex, may be a married person, and subject to certain disabilities, should enquire whether she be married, and what is the degree of disability to which her coverture subjects her. If he does not by enquiry satisfy himself that no such disability exists, as will prevent her from conlracting with (a) Boull., torn. 2, tit. 4, c. 2, obs. par. 2, c. 6, s. 3, n. 3S8. 46, p. 467. (c) Bulge, 1st eel., i., 259. (i) Pothier, Tiuite des Obligatious, PERSONAL LAW GOVERNS. 373 him, it will be the effect of his own neglect, if his contract should be rescinded. If it were a rule that the capacity of the wife w\as to be decided by the law of the country in which she contracted, it must prevail, whether the husband accompanied his wife or whether he was still remaining in his own domicil and had given no sanction to her resort to another country. The consequences which would then result from it would be repugnant to the respective rights of the parties. To permit her, during her absence from him, to enjoy a more ample capacity than is conferred by the law of his domicil is to give her a status distinct from that of her husband, a capacity different from that w'hich she possesses under that law, and to abridge the authority of the husband. Even if the capacity of the wife were more restricted in loco contrac- tus, there would still be a great objection to the relaxation of the rule. The wife can have no other domicil than that of her husband, and whilst he retains it, her incapacities, as well as his authority, are subject to the law of that domicil. Her capacity could not be restricted without enlarging his authority, and thus his status, and the authority incident to it, would be affected by a law to which he is not subject ((/). Modern Views. — The question of the capacity of the wife towards third parties naturally falls under the larger question of capacity or status generally, ah-ead}^ considered ; and the balance of opinion favours in both questions the adoption of the personal law (e). The reasons given by Burge for adopting it for the present purpose in preference to the lex loci seem equally aj^plicable for the larger question, to which he applies the latter law in the cases of marriage and majority. The tendency of the English decisions is certainly in favour of the personal law, though the decisions are not definite or uniform (/) ; while in Scotland and the United States the lex loci apparently still governs (g). (d) Burge, 1st ed., i., 259—261. mick v. Garnett (1854), 5 De G. M. & (e) Weiss, iii., 505 ; Bar, Gillespie, G. 27S ; Duncan v. Canuan (1854), 18 330, 331; Foelix, i., s. 89; 1899, J. Beav. 128; and on appeal (1855), 7 1010 ; 1903, J. 380, cases of wife acting De G. M. & G. 78 ; Lee v. Abdy (1886), without husband's authorisation. 17 Q. B. D. 309. Foote would make (/) Gueprattei'. Young (1851), 4 De the law of the matrimonial domicil G. & Sm. 217 ; Cosio v. De Bernales govern (77). (1824), 1 C. & P. 26G ; Peillon v. (^) Fraser, Husband and Wife, 1317, Brooking (1858), 25 Beav. 218 ; M'Cor- 1318, citing Sforza v. Sandilands (1833), 374 PERSONAL CAPACITIES OF HUSBAND AND WIFE. There are three main distinct legal positions assigned to married women in the municipal systems of law, excluding that of perpetual guardianship which survives in very few : (a) Complete legal capacity, including power to possess, contract, alienate, hypothecate, and sue without the husband's authority, though his supremacy is admitted, as in Austria, Hungary, Norwa}', and Kussia, and the projected Belgian Code (//), while in Germany a wife may contract as to personal services without the husband's authority, but her power to bind property, not being in the nature of privileged property,, depends upon the matrimonial regime (i) ; (b) the common law view of Great Britain and the United States of the one personality of the spouses in law, which is now considerably modified by the effect of recent legislation (A) ; (c) general legal capacity, which requires to be supplemented for certain purposes by the authorisation of the husband, as in France, Belgium, Holland, Italy, Poland, Finland, Spain, and Geneva (/). Personal Law of Wife generally Governs, but Lex Loci Contractus sometimes Alternative. — A conflict of law will then arise if a wife belonging to a country comprised in one of these classes undertakes an obligation in a country belonging to another. Foreign View. — The jurisprudence of most countries adopts the personal law as the measure of a foreign wife's capacit}', whether that be more liberal or more restrictive upon her than the lex l<>ci())i). But in some municipal systems (e.g., the German, see o Jur. ;J98 ; 12 Sh. & M'L. 214 ; (1875, J. 302) ; Fiance, Code Civil, Wharton, ss. 118—121, 166, citing urts. 215, 219; Holland, C. C, art. Haydou v. Stone, 13 Rh. Isl. 91. 163; Italy, C. C, 134, 135; Poland, (//) Weiss, iii., 496, citing Russia law of 1825, art. 184; Finland, 1889, subject to the Svod (C. C, s. 84) ; c. 2, arts. 1—7 ; Spain, C. C, 60 ; 1874, J. 146 ; Norway, law of Juno 1889, J. 771. See Brazil, husband's 29th, 1888 (1889), Ann. de Leg. Etr. authority required for wife suing, 1895, 766; Greece, 1895, J. 186; 1902, J. J. 1104 ; and Italy, for wife proceeding 898. to the partition of a succession con- (}■) Geniian Civil Code, ss. 1395 — taining real projjerty : 1877, J. 450. 11(10, 1443, 1449—1454,1-160,1525, (m) l^iance, nationallaw of parties, 1519. Gcnevese wife, 1897, J. i>oo; Italian (/.) Weiss, iii., 496. The custom of wife, 1882, J. 617; 1884, J. 289; the City of London allowing a wife Russian wife, 1893, J. 868; 1169; trading alone in the city to sue alone German wife, 1880, J. 477; Swiss is only available in the City Courts : wife, 1885, J. 180; Spain, 1888, J. Foote, 513. 138 ; Switzerland, 1889, J. 347; 1890, (/) Weiss, iii., ■19n, citing Belgium J. 513, 514 ; Russia, 1888, J. 155. BUT LEX LOCI COXTli ACTUS SOMETIMES ALTERNATIVE. 375 ante) the law which is the more favourahle to the legal act of the married woman is adopted, and a restriction is placed on the general rule(/<). In France the national law is applied even though the person is domiciled in France and his national law would apply to him the law of his domicil (o), but foreigners in France can only claim civil rights which their country grants by treaty to Frenchmen {n) ; an Englishwoman has been held capable of suing in France without her husband's authorisation as required by French law(2>), and of binding her sej)arate jDroperty as if unmarried (c/), but a foreign wife whose law requires such authori- sation cannot sue without it in France {r), and in France the general rule is subject to a proviso analogous to one which is found in a con- flict of law as to majority (s) that the foreigner has not deceived the other party to the contract as to his age or nationality (/). Whether the capacity of a foreign spouse to deal with land in France should be decided by the personal law or by French law does not seem to be definitely decided. The decisions seem to favour the latter view, but not to allow rights to be claimed contrary to the lex loci as regards French land((0- The incapacity of a French wife follows her abroad, and French Courts will not enforce against her a judgment obtained abroad in a suit brought against her personally when she defended the case without her husband's authorisation (a). United States.— In the United States, conflicts of law in respect of the capacit}^ of a married woman to contract are determined by the same principles which we have seen to govern in the case of the capacities of infants. Accordingly the capacity of a married woman to enter into a voluntary transaction abroad is Foreign wife not domiciled in .Switzer- 1891, J. 1202; 1901, J. 146; Frencli- land is governed there by the law of her woman marrying a foreigner residing natioualit}^ without renvoi : Federal in France, held not liable to make Law of Civil Capacitj^ 1881, art. 10; declaration of residence required from 189-1, J. 1095: Fischel v. Codmann foreigners, 1901, J. 570 ; 1874, J. 125. (1894). Eutscheidungen des Bundes- («) 1896, J. 147 ; 1902, J. 1044. gerichts, xx. 648, 652 ; 1899, J. 878; {p) 1879, J. 62; 1876, J. 406. Egypt, Alexandria, 1895, J. 186 ; {i) Sirey, xxxiii., i., 665. and formerly in Sardinia, 1878, J. 160, (o) Lafleur, 7-2—74, citing C. C. of and the law of Spain. In France it has L.C., arts. 6, 1301, and Parent r. been held that a French wife can make Shearer (1879), 23 L. C. J. 42. ACTUAL PERSONAL LAW GOVERNS. 379 and herself, i.e., the law of the actual domicil at the time of the particular act governs (p). In Canada this question has been considered by the Courts, and although a leaning has been shown to the law of the original matrimonial domicil as retaining effect even after a new domicil has been acquired, the view al)ove stated seems to be accepted in the jurisprudence of Quebec (q). {}i) Lafleur, 67 — 72. Frenchwoman wlio has married a (<;) Laviolette r. Martin (18o(j), 2 foreigner, upon obtaining a divorce L. 0^.61; oL.C. J. 211; IIL. C. E. from him, recovers full capacity to 254 ; McNamee v, McNamee, H bind herself, alienate, and sue without E. L. 30; Stevens v. Fisk (18S3), 5 her husband's authorisation, though L. N. 79 ; 6 L. N. 329 ; 27 L. C. J. not the same status as she had before 228; 8 L. N. 42, 53; Cass, Dig. 235; marriage: 1879, J. 277. cited by Lafleur, ibid In France a CHAPTER YIII. EFFECT OF MARRIAGE ON PROPERTY OF HUSBAND AND WIFE — ROMAN LAW. There is a marked distinction between the mature Eomau law and other systems of jurisprudence as regards the civil rights and ■capacities of husband and wife. Under the mamis marriage, which has been already referred to, the wife ceased to be under the j)arental power or the power substituted for it, and all her pro- perty which she possessed or afterwards acquired became the pro- perty of the husband. Originally she had no right of succession at ■all to her husband's property after his death, and it was the praetor who afterwards granted her some such right if all next of kin of her husband — however far removed — failed, while in the later days of the Empire a privileged right of inheritance was granted to poor widows. In case of a marriage with manns the wife occupied the position of a. fdiafamiliaa to her husband, and all her property and acquisi- tions passed to him. When the marriage was without nianus, its only patrimonial effects were negative, in so far as the spouses could not steal from each other nor grant each other gifts. What- ever other results of the marriage miglit be desired had to form part of a special marriage contract between the parties about to be married. Without such special contract, it was understood that the husband was bound to maintain his wife and defray the household expenses. In order to assist him in this burden it was customary for the wife to contribute towards the sustenance of the oiicra matriinoiii, and such contribution to her husband's funds was called dos. Afterwards, in the latter part of the Empire, it became customary for the husband to set apart a sum in view of their marriage for the use of liis wife after his death, called at first donatio ante DOS. 381 niiptias, donatio propter nuptias. Both the dos and the donatio ante ov propter nuptias remained in the husband's administration. In all other property belonging to them, the spouses each retained the rights of owners, uncontrolled by their relation of husband and wife. Thus, with respect to the wife's property, there were the bona dotalia, or the property which was the subject of the dos, and the bona extra dotem, or the property not subject to it. The term& receptitia and paraphernalia, were applied to the latter. As to the property of the husband, the term antipherna or antido» expressed that part which was the subject of the donatio propter nuptias. The dos was contributed either by the wife herself, or by her father or paternal grandfather or great-grandfather, or by some other person on her behalf. Dos. — This was either (1) profectitia, or (2) adventitia. 1. The dos projectitia is that which is derived from the father or the paternal grandfather : " Profectitia dos est, quae a patre vel parente profecta est de bonis yel facto ejus" (a). The dos is said to be de bonis ejus, when the immovable pro- perty which he gives had belonged to another, but had been bond fide purchased by the parent, and was in his possession. Having been bond fide purchased, it founded a title in case of eviction for the recovery of the price. But if the dos comprised the money of another person deposited, with the parent, the latter could not confer on his daughter or her husband such a title as would enable them to indemnify themselves,. when it was recovered by the rightful owner. The latter is not, therefore, deemed to be de bonis parentis ; but if the money had been spent by the husband and wife, they were in the same situation when the money w^as repaid by the parent to the rightful owner as if it had really belonged to the father, and in the latter case it was considered profectitia de bonis ejus. The dos is said to be derived from the latter facto ejus, where it has been given, not only by himself, but by any person as his agent, or on his behalf, or by his direction, or where having been given without his previous authority, it had been subsequently [{a) Dig. xxiii. 3. 5. 382 EFFECT OF MARRIAGE ON PROPERTY ROMAN LAW. ratified by him. Paj-ment by the person who had joined the father as a surety for it, and the delivery, by the father's direction, of a gift which was about to be made to himself, are also cases of dos prof ectitia facto parentis (b). 2. Dos adventitia is that which is derived from a stranger, and every person was deemed a stranger except the father or paternal ancestor in the ascending line. "Extraneum autem intelligimus omnem, citra parentem per virilem sexum ascendentem " (c). But even that which the daughter received from the father was adventitia, if it were given by him not ex causa dotis. A payment made to a daughter by her father, as the surety of another who had promised to give a dos, or payment by the father to his daughter of a debt which he owed her, are instances of dos adventitia, and not jjrofeclitia (d). The delivery of the dos was obligatory on certain persons on account of their relation to the wife. From others it could only be demanded in consequence of their previous engagement to <:leliver it. The father, paternal grandfather, and great-grandfather, were bound, and the husband could compel them to give a dos to the wife (e). Neither the emancipation nor wealth of the daughter exonerated the father from this obligation (/), He was only excused from giving it, when the daughter, during her minority, had married without his consent, or had been guilty of those acts which subjected her to a forfeiture of her legit iina (g). He could not be compelled to give it to a natural daughter (/<). Upon a second marriage he was also bound to repeat it, unless in the meantime his fortune had been impaired (<). The mother was bound to give a dos to her natural daughter (A), but not to a legitimate daughter, " nisi ex magna et probabili vel lege specialiter expressa causa " (0- The poverty and inability of the father {h) Dig. xxiii. ;J. 5. 1, 2, 7. Jur. Quaest. ii. 14. (c) Cod. V. 13. (//) Yoet, ubi siqn-a; Perez, ad Cod. ((/) Dig. xxiii. ;i. o. 0, 11. v. 11. G. But see Yiiin. Select. Jur. (e) Cod. V. 11. 7 ; Dig. xxiiL 2. 19 ; Quacst. ii. 14. Yoet, xxiii. 3. 8, 10; Yinn. Select. (i) Yoet, xxiii. 3. 13. Jur. Quae.st. ii. 14. (/.•) Ibid. 14. (/) Yoet, xxiii. 3. 11, 12. But see (/) Cod. v. 12. 14; Yoet, xxiii. 3. Yiiin., Select. Jur. Quacst. ii. 14. 14, (7) Yoet, xxiii. ',i. l.'J ; Yinii, Select. CONSTITUTION OF DOS. 383 constituted such a cause (?/i). The brother might, for a similar cause, be compelled to give it to his sister of the whole blood (//). Its amount or value was required to be " pro modo facultatum patris et dignitate mariti " (o). It could not be demanded either from the wife or from any other relations, but those who have been mentioned. Other persons might incur legal liability to give dos, not from their relationship to the wife, hut jn-omissione . The Constitution of Dos. — Tbe dos was formerly constituted in one of three ways. "Dos aut datur, aut dicitur, aut promittitur"(|)). The datio consisted in the immediate transfer to the husband either of the property constituting the dos or of the rights over it {q). The iwomissio took the shape of an ordinary verbal contract (stipidafio) to make over the dowry at a future date. The dictio was a simple specification of the dowry made by the bride or her debtor or a male ascendant, and the bridegroom probably signified his acceptance as in the formula given in the Andria of Terence : " Chremes. Dos, PamphUe, est decern talenta. Pamph. Accipio" (r). In order to be effectual, it ought expressly to state either the specific subject, or the amount intended to be given ; or it should state it to be that which might be fixed honi viri arbitratu(s). Under Theodosius and Valentinian the nudum pactum whereby the dos was agreed upon was specially recognised as actionable, and thereafter the solemn forms of the earlier law fell into desuetude. The dos was now given in the same way as an ordinary donation. The wife could not be compelled to contribute any part of her property as dos, but it was at her option to contribute the whole, or jmrt of it, and not only her present, but her future property {t). A simple assignment of all the wife's property will not include her future property (?(, . An assignment by her is not presumed from the circumstance of er permitting her husband to enjoy all her property, if that (m) Cod. V. 12. 14 ; Voet, xxiii. 3. (>•) Act 5, seen. 4. 14. (s) Yoet, xxiii. 3. 8; Cod. v. 11. {n) Ibid. ; Sande, Decis. Fris. ii. S. 2. 1, 3. (o) Dig. xxiii. 3. 09; Voet, xxiii. 3. 8. {t) Voet, xxiii. 3. 3 ; Perez, ad Cod \p) Ulp. vi. 1. V. 12. 8. [q] Dig. xii. 4. 10. (h) Ibid. 384 EFFECT OF MARRIAGE ON PROPERTY — ROMAN LAW. permission has not been accompanied by any mention of his holding it as dos (x). Every description of property, movable or immovable, corporeal or incorporeal, that which might thereafter belong, as well as that which then belonged to the party, might be the subject of dos (y). It might be constituted before, or at the marriage, or stante matrimonio, either by actual delivery, or by giving security for it, or by bequest ; and that which had been already given might, during the coverture, be augmented, unless such augmentation was made in fraud of creditors (a). The remission of a debt owing by the husband, and the delegation by the wife to the husband of her debtor, were as much dotal gifts, as the delivery of the amount of these debts would have been. If, property had been delivered to a person in order that uvptiis secutis dos efficeretiir, and the person who had thus delivered it died before the marriage, yet the dominuon in favorem dotis would pass on the marriage to the husband, although in any other case it would not have passed to that person, and therefore the gift would not have taken effect(/;). When the dos was constitiiied j^romissione, the right of the husband to enforce by suit its delivery, awaited, and was dei^en- dent on the marriage, neque enim dos sine matrimonio esse potest. If therefore, the marriage was broken off, his right was at an end (c). The delivery of the dos might, by the stipulation of the party, be postponed for a certain period after the marriage. If after the arrival of that period, or if, no period having been fixed, the person who had promised it had, at the expiration of two years from the marriage, failed to deliver it, he was chargeable with interest (d). The dotal property was frequently valued, and a price was put on it, in order, either, that the husband might become the purchaser of it at that price (aestimatio vcnditionls causa) or, that the wife might have the option of recovering either the property itself ; or the price at which it was valued, in case the goods constituting the dos were lost or diminished in value through the fault of the husband {aestimatio taxaiionis causa) (e). [x) Voet, xxiii. 3. ."} ; Perez, ad Cod. (h) Voet, xxiii. 3. 7. V. 12. 8. (<•) Dig. xxiii. 3. 3. (y) lbid.,n.(K {,!) Voet, xxiii. 3. 9; Cod. v. 12 (a) Novell. 97, c. 2 ; Cod. v. 3. 1!) ; 31, 2. Dig. xxiii. 3. 29; Voet, xxiii. 3. 7. (e) Voet, xxiii. 3. 17, 19,aiul xxiii. ;j,3. DOS — husband's powers. 385 The husband acquired a dominium m the dotal property, which was determinable on the dissolution of the marriage, unless he had become the purchaser of it at an estimated value. In that case, although it was not determinable, it was competent for the wife, if he were insolvent, to recover so much of the dotal property as still remained in his possession {f). Powers of Husband over Dos. — At first the proprietorship of the husband was absolute, but afterwards a double limitation was imposed upon his rights, viz., a prohibition of alienation and an obligation of restitution in certain cases. As to the first limitation, the husband, in respect of his dominium, might recover in his own name any part of the dos which was withheld. He might even institute an action, against his wife, if she had withdrawn any part of it. He had the administration and management of the dotal property, and received for his own use its annual fruits, rents and profits, in consideration of which he sustained the expenses incident to the marriage. If a debt owing by him to his wife were the subject of dos, he was not chargeable with interest on it during the coverture (fi). He had the power of alienating such part of the dotal property as was movable, whether valued or not, subject to the obligation of making ultimate restitution of its value. He could not, even with her consent, alienate or subject to any charge or incumbrance any part of the dos which was immovable, unless he had become the purchaser of it at an estimated price {h). Originally he was able to do so with the consent of his wife (i) ; but under the Lex Julia de /undo dotali (part of the IjCx Julia de adulteriia) hypothecation was forbidden even with the wife's consent. Justinian placed alienation on the same footing as hypothecation, and extended its prohibition to the wife as well as to the husband. An alienation or a charge on the dotal immovable property was thus ipso jure void (j). But it might be sustained, if the wife had, for two years after the alienation, consented to it (A), or the price for which it had been sold had been invested in the purchase of real property, more, or equally advantageous (/). As to the second limitation, originally the dos as a rule remained (/) See note (e), p. 3S4, [i) Dig. xxxi. 77. 5 (:J). {(j) Yoet, xxiii. o. lit; Dig. xxiv. (,/) Yoet, xxiii. 5. o. 3. 11, and xxv. 2. [k) Yoet, xxiii. 5. (i. {],) Dig. xxiii. o. {J) Ibid. M.L. 25 386 EFFECT OF MARRIAGE ON PROPERTY — ROMAN LAW. the property of the husband. But gradually the rights of the wife and her heirs Avere extended, and by Justinian's law the dos returned to the wife or the donor in a number of cases. On the dissolution of the marriage b}^ divorce or by the death of the husband, leaving the wife surviving him, the dos irrofectitia belonged to her, if she were sin juris, but if she had not been •emancipated, it reverted to her father (m). If the wife died, leaving the husband surviving, it would seem that whether she were in imtria potcstate, or emancipated, the dos j^rofectitia reverted to the father, notwithstanding she left children, but it is contended by some jurists, that if she were emancipated, it ought to belong to her heirs (h). The dos adwuiitia, on the death of the wife, whether she survived •or predeceased her husband, always belonged to her, or her heirs, unless it had been given on condition that it should revert to the -donor on her death {dos receptitia) (o). Although the restitution of the dotal property was demandable only on the dissolution of the marriage, yet there were cases in which, sfante matrimonio, it might be restored to the wife, not, however, with the power of alienating it, but merely for the purpose of security, and for the maintenance of herself and family out of its annual profits. Thus, if the huslmnd was dissipating the jDroperty, and there was danger of his becoming insolvent, if he were banished, or if there was an ojDportunity of making an advantageous purchase of a farm, she could obtain its delivery {p). If it had been lost, without the neglect or fraud of the husband, he was excused from restoring it, unless, indeed he had taken it at a stipulated price, as the purchaser, in which case it continued at his own risk, and he must make good that price {q). It was to be restored with all its accessions (r). If he had sold that part of it of which lio had the power of disposition, he was accountable only for the price at which it had been hand fide sold (.s). Such part of the dotal property as consisted of immovable estate was to be restored immediately after the dissolution of the marriage, (w) Voet, xxiv. 3. b ct seq. ; I'erez, eund. loc. ; Terez, :i(l Tod. v. is. 1, 5. ad Cod. V. 18. 4, o. {p) Yoet, xxiv. 3. 2. (») Hotmail, de Dot. ell; Zocsius, \q) Voet, xxiv. 3. 10, 20. xxiv. 3. 11. (/•) Yoot, ad hunc tit. n. 12. {(>) Yoet, xxiv. 3. 7 ; Zoeniut;, ad (a) IhvL, n. 14. DONATIO riiOl'TER XIPJIAS. 387 l)ut one year was given for the restitution of that which was personal. The, n»c?»s, or rents and profits of the dotal property of the year in ^whicli the marriage was dissolved were apportioned (0, and the liusband, or his estate, received a projiortionate share of them for .that part of the year which preceded the dissolution of the marriage ,by the death of his wife or himself («). The husband or his estate was entitled to retain the dotal property until repaid those expenses which were absolutely necessary, " quie si factfe non sint, res aut peritura, aut deterior futura sit " {h). " Et in totum, id videtur necessariis impensis contineri, quod si ;a marito omissum sit, judex tanti eum damnabit, quanti mulieris interfuerit eas impensas fieri " (c). But he could not retain it for the expenses which were called, in the civil law, ntiles : " quas maritus utiliter fecit ; remque meliorem uxoris fecerit, hoc est, dotem " {>!). " Yeluti si novelletum fundo factum sit ; aut si in domo pistrinum, .aut tabernam adjecerit ; si servos artes docuerit " (e). " Item impensa^ utiles sunt veluti pecora praidiis imponere, id •est, stercorare " (/). Originally the obligation of restitution was a matter of express •contract, enforceable by an actio ex stipnlatn. In time an obliga- tion independent of any express stipulation was admitted, which was enforceable by the actio rci nxori(C, a hoiue jidci actio which allowed the above-named and a number of other retentions by the husband. Justinian merged the two actions into one actio ex stijytdatu, whereby an implied stipulation of restitution for the benefit of the wife and her heirs was established in all cases. This action was made an actio hoiue jidci, but most of the retentioncs fell ;away {(i). The wife had by Justinian's law a tacit hypothec on all the estate of the husband for the restitution of her dotal property (/O' Donatio Ante Nuptias and Propter Niiptias. — In the later period of .the Empire an institution was known under the name of donatio {f) Yoet, xxiv. 1. 11. (e) Ibid. {<() Voet, xxiv. 3. 12. (/) Ibid. (6) Dig. L. 16. 79. (//) Inst. iv. 0. 29. (c) Dig. ihi'I.; Totb. Tand. xxv. 1.2. (//) Cod. v. 1:5. 1. 1. ,((/) Ibid. ; Yoet, xxv. 1 . iJ. 25—2 388 EFFECT OF MARRIAGE ON PROPERTY ROMAN LAW. ante mqytias, Avhich was a gift by the husband to the wife. It had its own rules which gradually developed into a sj-stem placing the donatio on the same footing as the dos. It then became obligator}' that there should be a gift of property on behalf of the husband ad sustincnda onera matrimonii. Before the reign of Justinian, it- must have preceded the marriage. But it was by that Emperor permitted to be made or augmented after the marriage, and for that reason it was termed donatio propter nuptias. It was treated as a security for the wife's dos, and quasi causa rei>iunerandi dotis. It corresponded in mam' particulars with the constitution of the dos. The husband was entitled to receive the profits of it. During the marriage the husband remained the owner of the goods which con- stituted the donatio. He had the administration thereof, but could not alienate the immovables. On the dissolution of the marriage by the death of the wife or by divorce through the fault of the wife^ the goods remained the property of the husband. If the divorce were through the fault of the husband the property went to the wife, if there were no children, otherwise to the children. On dissolution of the marriage through the death of the husband, the wife had the usufruct of the property and shared the ownership with the children (/). It was even enacted in Novel 97, that the donatio should be of equal value or amount with the dos. It will have l)een seen from the preceding summary that the- wife's property was either that which was the subject of the dos {bona dotali(i), or that which was extra dotein {bona cxtradotalia or paraphernalia). The first of these terms was applied to that part of her property which she made over to her husband as a contribu- tion towards the expenses of the joint household. Bhe retained over every part of her property which was extra dotein an absolute right, not only of administration, but of alienation, and it was wholly exempt from the interference of the husband {k). The only part of the husband's property in which he did not retain the sole and absolute power of alienation incident to the ownership, was that which had hQ(i\\ gwew propter nuptias or bona antidotalia. As to the rest of his property, he retained the absolute and uncontrolled poM'er of alienation, and the wife had no interest. in, or power of interfering with it. (/^ lu^-t. ii. 7. :J. (A-) J»i-. xxiii. ;5. U. :> ; Cod. v. 11. N. marp.ia(;e contracts — BOXATioyjJS ixTEn roxjufiES. 389 Such are the rights, powers, and interests, which the husband and wife derived from the Law, in the absence of any agreement by which they might have estal)Hshed for themselves a difYerent l')rovision. Marriage Contracts. — The civil law admitted nuptial agreements (pacta dotalia), giving to the husband and wife other interests and powers than those which have been mentioned. Thus, they might stipulate that the survivor should have a certain share of the gains of the dotal and anti-dotal property, or that on the death of the wife the dotal property should 1)elong to the husband. But as marriage and dos were institutions of public interest {jus pubUcuin), the liberty of the parties to vary the provi- sions of the law was somewhat restricted (/). So it could not be stipulated that on the husband's death, it should 1)6 returned to any other person during the wife's life, because such a stipulation would be inconsistent with the nature of ) Dig. xxiv. 1. 5. 5; ihi>L 7, ;J], (o) Dig. xxxiv. 3. 14. 1 ; Cod. v. 20. 4!>. 590 EFFECT OF MAREIAGE OX PROPERTY — Re^IAX LA^Y. therefore, it permitted donations oh cnusam as propter nvptias, it prohibited those nine causa. Donations, therefore, between them (q) were prohibited. Not only were the husl)and and wife the objects of this prohibition, but also other persons to whose power they were subject (r), and the donation, whether it be made directly by the husband and wife to each other, or by the intervention of a third person, was equally invalid. The donation was ipso jure void and transferred no title to the donee, but the donor might recover it back. There were some donations which it was permitted them to make to each other, when the donor did not thereby become paupcrior or the donee locuph'tior {s) . Instances of such donations were, when property, the subject of the gift, belonging to another, was given with or without the latter's consent, in which case either the dominion or the power of acquiring a title by usucapio was transferred to the donee. Gifts made l)y the wife to procure some dignity for the husband, or of apparel, ornaments, . COMMUNITY IN DUTCH PROVINCES. 393 of her shave of the dos, received a half-share of the marriage property, which became common between hus1)and and wife, that is to say, the birth of a child constituted community of property between husband and wife (/). Thus community of propert}^ — so entirely in harmony with the intimacy of German family life — was gradually admitted into marriages among Germanic tribes, first in the towns, where pro- perty was mostly of a movable nature, later in the rural districts (//). In early days this community had the character of a joint ownership. Afterwards it l^ecame chietiy a community pro parlibiiH indivisis (li). As far as the Low Countries were concerned the law was different in the various Provinces. In Friesland community of all property (communio honorum) between husband and wife has never been known. Immovables remained the property of the person who possessed them at the time of the marriage. If acquired during the marriage they became common property. There was a community (a) of profit and loss made during marriage {communio quastaum) , and after the marriage had lasted a year (except in the towns) also (b) a community of movable property. The character of this community was that of a communio in'o partUms indivisis (i). In Groningen, in the Ommclandcn, from 1(301, according to the landrccht of that 3'ear, there existed a community of movables and of profit and loss. Immovables never became common between husband and wife. In the town of Groningen, from 1374 onwards, community of all property was the rule. If there were issue born of the marriage the goods were held by parents and children jointly. If the marriage was childless the community was a communio pro partihus indivisis (A), In Drenthe a distinction was made according to whether the marriage was with or without issue. If a child were born, the community was a joint one of all goods. If the marriage was (/) Fock. Andr., Het Oud Ned. 64 ; Het Oud Ned. B. E., ii. 170, E. k, ii. 167— 169; Wessels, History, 171; J. v. Sande, Dec. Fris., ii. o, i. 4o4, 455. def. 1 ; Wessels, History, i. 455. ((/) Fock. Andr., loc. cit., ii. 170; (7i) Fock. Andr., Bijdragen, ii. 64 — Wessels, History, i. 455. S2 ; Het Oud Ned. B. E., ii. 171— (h) Fock. Andr., Jor. . 11., ii. 172, 173. (n) Fock. Aiulr., Bijdragen, ii. 119' (w) J-'ock. Audr., Bijdragen, ii. 87 —128 ; llet Oud Ned. B. Ii., ii. 173- —91, 91— (»7, 97—109, 109-119: Het 173. COMMUXIO IWXOBUM. 395 desirable first to consider the general character of the coniinuiua honoruDi and the manner in \Yhich it was established. The maxim of the lloman-Dutch law was vir ct nxor bona non hahent separata, or man cnde wiif liehhen geen versclieydcn (i()et{o). Community not a Partnership. — This maxim has led a number of authors to call the bond between husband and wife a partnership^ and to compare its rules with those of the socictas of the civil law(2J). This is misleading. In a colloquial sense there can be no objection to compare the community of life and property existing between a husband and wife with a partnership of two persons, but legally there is an essential difference between the commuuio hoiiondii and the soeietas. Partnership, with its consequences, is entered into voluntarily, by agreement, while community of property is a legal consequence of the marriage, independent of the will of the parties. Consequently, a partnership may be dissolved at any moment, voluntarily, by agreement ; but the community remains attached to the marriage as long as the marriage lasts. Again^ while partnership is dissolved by the death of one of the partners, the community is not determined by death, but death l)rings the marriage to an end, and the dissolution of the marriage carries dissolution of the community with it. The marital property might, however, after the dissolution of the marriage, be kept in existence as a community called Jtoeddhonderschap. This was not a new community, as would be the case if husband and wife were partners, but the old community which Avas kept alive after the marriage to which it belonged, and which called it into exist- ence, had ceased to exist. It was the same community, although its title had changed, and there were different rules in different Provinces regulating continued acquisitions of property by the community and imposing special duties on the surviving spouse or hocdcUioitdcf. Again, debts are not always common between the spouses as they are between partners, nor can either of them be sued equally for their payment. If at all, the com)uunio honorion can only be considered as a qualified partnership. Division of Subject. — The subject is here dealt with under the following heads : — I. Commencement of the community. II. Com- munio oiiniium honoruiii : (a) As to its assets; (h) as to its liabilities. (o) A. Matthaeus, raroem. Belg., ii, {i') J. Cos, Eechtsgel. Yerh., i. '21, 8 ; J. V. d. Linden, Koopmansh., i. .'j, S. and authors quoted by him. 39G EFFECT OF MARRIAGE ON PROPERTY — ROMAX-DUTCH LAW. III, Communio qucestuum : (a) As to its assets ; (b) as to its liabilities. IV. The termination of the community, by the dissolution of the marriage. V. The continuation of the community after the death of the husband or wife, lioedelhoiidcrscha]}. YI. The division of the property which had been in communit}^ and the respective rights of the survivor and the heirs of the deceased. I. Coiiimenccmciit of the Community. The community was called into life by law {land red it) {q). By the law of Holland and Zeeland, the rominnnio omnium hojiorum took place as the immediate consequence of the marriage, and commenced from the moment of its celebration, either in facie ecclesia' or before the magistrate. In some Provinces {e.f/., in Groningen and Utrecht) and in some of the towns of Holland the title to it was not complete unless there had been int/ressus tliori, and the same was the rule as to the communio qucestuum of Friesland. In this Province, as far as movables were concerned, it was required, that there should have been annua ;ir. 2, Neostad., de Pactis Antcnup., Obs. 4; Fock. Andr., /or. <77. COMMUNITV CONSEQUENCE ()!• MARRTACE. 397 tdithun coittralieiitrs a consiicttKliiic, rcl stafitto irccssissc intdliijeiidi sunt, ([iiatciuts iiintrKiiiciito nnptiaU pacti sunt in contrarhim ; cuetem per se lex rel e(>ii>iiietii(Jo (Kljirit et interprefatiir. Liitiir exclasd pactis dotalibus hononnn eonimnnioKe, liicri daiini'Kine in matrimonio facti aminuiitin remanet (.s). In case of doubt, the presumption of law was in favour of the community {pro eommunionc potius quam contra earn) (t). So much was this community of common right, that a minor who had married with the requisite consent, could not obtain relief against it by restitutio in integrum {a). As the marriage was the very essence of the title to community, there could not be any community until the celebration had taken place, nor if the marriage were declared null and void. It has been dou1)ted whether community would take place in the case of a putative marriage. No doubt occurred if there had been bona fides in both parties, and if both were ignorant of the impedi- ment to their union. But one party only might be innocent, and that party might possess the chief fortune, whilst the guilty party was possessed of little or none. If in that case the com- munity were admitted, the latter would profit by his fraud. It was considered, therefore, that in case either of the parties knew of the impediment and intentionally did not reveal it, com- munity should only follow when it would be in the interest of the innocent party, and not when it would be to the latter" s detriment {h). The law was similar with regard to marriages of minors, viz. : — ■ in those Provinces where the consent of third parties was required (s) A. v.Wesel, deQuiest. iuterCouj. de Pact. Antenupt., Obs. 23; v. Com., tr. ii., c. nn. 224, 22.5 ; Neostad., Someren, de Jure Nov., c. 12, b. 3 ; de Pact. Antenup., Obs. 4 in notis (3) ; A. v. Wesel, loc. cit. tr. ii., c. n. 223. = Coren., Obs. 30, Vers, "dan wierde," (a) A. v. Wesel, deCou. Bon. Societ., nn. 64 et se(j. ; v. Someren, de Jure tr. i., nn. 116, 117 ; Groenewegen, de Nov., e. 12, n. 3 ; A. Matth., Paroem. Leg. Abr., Cod. ii. 34 jo. 30. Belg., Par. 2, n. 68; J. Voet, Ad (6) A. v. Wesel, i'oc. «#., tr. i., n. o3 r- Paud., xxiii. 2, 91; Grotius, Introd., J. Cos, Eegtsgel. Verb., i. 2, 5 ; v. ii. 12. 11 ; Eegtsgel. Obs. ii. 32; IIoll. Sande, Dec. Fris., ii. 5, 2; Goris, in Cons., iii. b. Cons. 182, nn. 10, 11; V. Advers., c. 1, n.26,in notes; A.Matth.,. d. Keessel, Tbes. Sel., Tbes. 227 and Paroem. Belg., Par. 2, n. 17 ; J. 252; V. d. Linden, Koopmansh., i. 3, Voet, Ad Pand., xxiii. 2, 89 ; Stock- 8, on p. 28. mans, Decis. 62, n. 7 ; Bynkersboek,. {t) Coren., Obs. 36, n. 66 ; Neostad., Qusest. Jiu\ Priv., ii. 3, 398 EFFECT OF MARRIAGE ON PROPERTY — ROMAN-DUTCH LAW. for marriages of persons under a certain age. In all cases where a person knowingly married a minor without the requisite consent of parents or guardians, such person could not derive any pecuniary iidvantage from the marriage, either by way of community of property, or by any gift from the minor during the minor's lifetime or by his or her will, or otherwise (c). In those Provinces where any marriage contracted without such <;onsent was null and void, whenever a marriage had been entered into with a minor without the requisite consent of the parents or guardians, and such marriage was afterwards declared illegal, it was considered that no community had taken place, unless it were regarded to be to the minor's advantage and the minor would derive any benefit from it (c). Similarly, community did not result in case a minor were abducted for the purpose of marriage against the wish of the parents, .although with the minor's own consent, even if the marriage after- wards received the parents' consent (u>isiuu, whether it was limited in time or contingent, because— in the words of Yoet — the property really belonged to some one else (ui) ; (3) entailed property (;/) ; (4) fruits of office, or obtained through public functions which were entirel}' personal (o). (//) Grotius, Intro(i.,ii. 11, 9 ; Holl. 220 ; J. Voet, Ad Pand., xxiii. 2, 71 Cons., i. Cons. 47 and 48; A. V. Wesel, — 76; Holl. Cons., iii. Cons. 2o ; deConn. Bon. Soc, tr. i, n. 58; J. Voet, Grotius, Eeclitsgel. Obs., iii. Obs. AdPand.,xxiii. 2, 89 and 122—123, and 36; Grotius, Introd., ii. 11, 10, and the authors quoted by him Bynkers- Schorer's Notes, ad loc. cif. ; Groene- lioek, Quaest. Jur. Priv., ii. 2 ; J. Cos, wegen, De Leg. Abr., Inst., ii. 8, 2, Eegtsgel. Verb., i. 6; Decisions and and authors qvioted ; Bort, Van de resolutions of the Court of Holland, Holl. leenen, ii. 11 ; J. Cos, Eechtsgel, loo, 422 ; J. V. d. Linden, Koopmansh., Verb., i. 7, and authors quoted by him. i. 3, 8 ; V. d. Keessel, Thes. Sel., Thes. (m) J. Voet, Ad Pand., xxiii. 2, 219. 77 ; V. d. Keessel, Thes. Sel., Thes. (/) J. V. d. Linden, Koopmanshdbk., 221 ; Grotius, Introd., ii. 11, 10, and i. 3, 8. notes by Groenewegen. (/i-) Grotius, Introd., ii. 11, 8 ; (n) J. Cos, Eechtsgel. A'erh., i. 7 ; Groenewegen, De Leg. Abr., Inst., ii. V. d. Linden, Koopmansh., i. 3, 8. 8, 1 ; J. Voet, Ad Pand., xxiii. 2, 69 ; (o) Arntzenius, Inst. Jur. Civ. Belg., Lybreghts, Eeden. Vertoog, i. 10, 8 ; ii. 4, 18, 3 ; Holl. Cons., v. Cons. Id; Holl. Cons., i. Cons. 19. J. Cos, Eegtsgel. Verb., i. 11. (/) V. d. Keessel, Thes. iSel., Thes. 400 EFFECT OF MARRIAGE OX PROPERTY — ROMAN-DUTCH LAAV. Contingent interests did not, hoAvever, form part of the com- munity, if the contingency depended upon the happening of a future event which was certain to take place and which, when it happened, rendered the estate the owner's unrestricted property, or (in the case of a fief) if the overlord consented that the fief should be included ( J)). Although the property itself was excluded, for the reasons assigned, yet the community would have the benefit of its annual rents and profits (q). Gifts of money, ornaments, apparel, &g., made c((us('( ini2>tiann)t by the husband to the wife, either before or after the celebration of the marriage {morgcngace), were acquired and retained by the wife, pleno jure, and did not fall into the community. The obvious ground of their exclusion was that the gift would have been nugatory if the husband could thus have resumed it on the marriage (r). (b) The Liabilities. — The similarity which existed as regards the assets of the communio oniiiiuiit hoiwnim was not maintained as regards its liabilities, and there was a good deal of diversity on this point in the law of the difierent Provinces. Speaking generally, it might be said that all debts became common which were con- tracted before the marriage either by the husband or by the wife, or during the marriage by the spouses jointly, or by the husband alone. In case the wife, with the consent of her husband, were publicly carrying on a trade, her debts incurred as public merchant also became debts of the community; otherwise she could not l>ind the community l)y herself. (Jn('iiia(hn(i(lu))i ei'fio i^er nuptias omnia qiue ante iiiatri))i(»iiiiiit coeuntiaiit fnerc proinia et pccnViana, qutciine co cotitracto qitoqiio modi) ohrenlunt, utriqiie conjncji finnt communia, adeo ut una domus et commixta familia vcrc dicaiur, ita iion j^otest 7ion esse cons<'(iiieiii> (iris (dicni inter conjur/es communio {s). (;<) J. Yoet, Ad Paiid., xxiii. 2, 71; Conn., tr. ii. 2. 142—144; Coren, and authors quoted by him. Cons. xxv. 33 — 35; Lybreghts,Eedcu. (7) Grotius, Intiod., ii. 11, 10, and Voitoog, i. 10, 9, and authors quoted ; Hchorer's Notes, (f/ /(»•. '(Y. ; Rethtsnel. J. Cos, Eechtsgel. Yorh..i. 12. Obs., iii. 01)s. .'i(j ; J. A'oet, Ad Pand., (r) J. Voet, Ad Pand.. xxiii. 2, is, xxiii. 2, 71 ; J)ort, Holl. leenen, v. 2, and authors quoted by him; Stock- c. 3, quaest. 5 cl seif. ; v. 3, c. (5, arts. 2, mans, Dccis., xlvi. ; J. Cos, Bechtsgel. 2, N ; A. Matth., Parocm. P.elg., ii. 23 ; "N'crh., i. 8. A. V. AVciol, do (iuae.st., inter Conj. (.s) A. v. "NVeseljdo J >aniniintor Conj. AXTE-NUITIAL DEBTS. 401 The liability which was thus incuri'ed was the necessary effect of the community of the spouses in all the property of each other, "secundum )uituniiii est, coiiiiiioda cujusquc rei eum se) A. Mattb., Paroem. Belg.,ii. 22. Scborer, Notes ad Grotius, Introd., ii. (c) Fock. Andr., Bijdragen, ii. 80, 11, 10. 94—97, 112, 113; Grotius, Introd., M.L. 26 402 EFFECT OF MARRIAGE ON PROPERTY ROxMAN-DUTCH LAW. incurred previously to the marriage by either the husband or the wife could only be enforced as long as the communit}' lasted. During marriage the husband could be sued for their payment, on account of his being the head of the community and, as such, guardian of his wife. On being sued he could not deny thai the common projierty was liable (/). In the Provinces of Gelderland ((/) and Utrecht (/<), after the dissolution of the marriage, the creditor could enforce his right against either the husband or the wife or their heirs for the whole debt {in soliduDi). The same rule probably applied in the town of Groningen {i), and in the province of Drenthe (A). In Holland and Zeeland, debts incurred previously to the marriage by either the husband or the wife, and not sued for during the marriage, could, after dissolution of the community, only be recovered by the creditorn from the party who had incurred them, or his or her heirs (/). A decision to this effect was given in 1597 by the Supreme Court of Holland in a case where it was attempted to recover from a widower one moiety of a debt owing by his deceased wife at the time of their marriage. It was lield that, as the wife, at the time when the debt was contracted, had no power to bind her future husband, and as he subsequently became bound only by force of the com- munity, if the creditor neglected, during its continuance, to enforce the right which it gave him, he lost his resort against the Inisband, because that right ceased when the community ceased by the death of the wife (m). Whether, in such a case, the party who had been proceeded against succeeded to the right of the creditor and could sue the other spouse or his or her heirs for a contribution of half the (/) Grotius, Introd., ii. 11, 12 ; J. (/.) Fock. Aiidr., Bijdragen, ii. 8(>, Voet, Ad Pand., xxiii. 2, 80, and 87. authors quoted by him. (/) Grotius, Intnul., ii. 11, lij ; IIoll, ((/) Fock. Andr., Bijdragen, ii. 94— Cons., ii. Cons. 2o ; Groeiiewegen, de 97. Leg. Abr., Dig. xxiii. 3, 72 ; S. van (A) Fock. Andr., P>iidr;igen, ii. 10(5, Loeuwen, Ii. H. R., iv. 2'S, 6; J. and authors quoted by liiin ; A. v. Yoet, Ad Pand., xxiii. 2, 80. Wesel, de Conn. Bon. Soc, ii. 1—G; V. (m) Neostad., de Pactis Anten., Someren, de Jure Noverc, l.'J, 5 ; Obs, 12, 13; Groenewcgen, do Log. Schorer, Notes ad Grot. Litrod., ii. 11, Al)r., Dig. xxiii. 3, 72 ; Bod-Loon iu.«, 12. Decis., ca«e 99 ; V. d. Keessel, Thcs. (i) Fock. Andr., Bijdragen, ii. 80— Sel., Thes. 224. 82. POST-NUPTIAL DEBTS. 403 amount of the debt thus contracted, was a dispuind (question (u). AccordinjT to the majority of the authorities in Holland, contri- bution of that amount could be exacted (o). Others were of opinion that no such contribution could be claimed; that — in other words — after the dissoluti(jn of the community the debts contracted by one of the spouses previously to the marriage ceased to be common between the two spouses (/^). Others, again, were of opinion that no definite rule could be stated, and that everything depended upon the rules laid down by the different towns (q). In Gelderland (r) and Utrecht (.s), and the town of Groningen, the spouse who had been sued and had paid, or his or her heirs, had always a claim for contribution of a moiety of the amount of the debt against the other party, or his or her heirs. Post-nuptial Debts. — 2. In the second place it is necessary to consider the extent of the liability of the spouses for debts con- tracted during their marriage. In so far as the management and administration of the property in common was vested in the husband, the debts and charges in- cuned by him alone in that capacity were binding upon the common property, and might be recovered by the creditors against the common estate (t). Owing to the guardianship which a husband exercised over his wife, and of the wife's general incapacity to bind herself, the husband could bind her for all debts incurred by him, and the pre- sumption that such was the husband's intention arose from the fact that the liability for all debts incurred by the husband was common to both spouses (a). (n) Schorer, Notes ad Grot. Introd., (/) Fock. Aiidr., Bijdrageu, ii., 94; ii. 11, 12; Fock. Andr., Bijdragen, ii. L. Goiis, Adveis., tr. i. 4, 1 ds^^q.fand 113— IK). lietsr,/. (o) Groenewegen, Notes ad Grot. {s) Fock. Andr., Bijdragen, ii. 106; Introd., ii. 11, 15; S. van Leeuwen, A. v. Wesel, de Quaest. inter Conj. Cens. For., i. 4, 23, -21 ; Holl. Cons., i. Cons., ii. 2, 189; Ad. Nov. Const. Cons. 150; Neostad., loc. cit., Obs. Ultraj., vi. 8 et seq. ; v. Someren, de 13, in rudis (a); J. Voet, Ad Pand., Jure Noverc, xii. 6 ; A. Matth,, de xxiii. 2, 80. Auct., i. 19, 40; J. Voet, Ad Pand., (;*) De Haas, Nieuwe IToll. Cons., xxiii. 2, 80. p. 351 ; V. d. Keessel, Thes. Sel., (/) Fock. Andr., Bijdrageu, ii. 59, Thes. 224. 73—74, 76—78, 80, 80, 90, 93, 103, ((/) Boel-Loenius, Decis. case xciv. 115 — 116. 627; Schorer, Notes ad Grotius, (a) Fock. Andr., Bijdragen, ii. 115 ; Introd., ii. 11, 12. Rodenburg, de Jure Conn., ii. 1, 3. 26—2 404 EFFECT OF MARRIAGE OX PEOVERTY ROMAN-DUTCH LAW. The wife had power to bind her husband to a hmited degree onlj'. As she was generail}' mcapable of contracting debts or making con- tracts stante matrimonio, she could only bind the community and her husband for the debts incurred by her in connection with house- hold expenditure or as a public merchant, if she carried on such business with his consent (h). The result was that after the dissolution of the marriage all debts contracted during the marriage could be recovered by the creditors from the husband or his heirs in soUdrnn. The husband and his heirs had in their turn an action against the wife and her heirs for contribution of a moiety of all amounts thus paid(f). After the dissolution of the community the creditors might proceed against the wife and her heirs for the recovery of the common debts to the extent of one-half only (d), except with regard to mortgages which had been granted by the husband upon the common estate. A mortgagee could 2)roceed against such estate for the whole amount of the mortgage, irrespective of the fact that on the dissolution of the community the mortgaged property might have been assigned to the wife or her heirs (<•). Jurists have had no hesitation in attaching to the property such debts or engagements contracted by the husband as were beneficial, or, at least, not injurious to the community ; but it has been doubted whether those which had been contracted by him for purposes from which the wife could only derive loss and injury ought to affect the property of the community. Upon this point the majority of authors on the subject have come to the conclusion that in the case of communio honorum the property of the community was liable for the husband's obligations as a surety, and even for debts contracted Bacclio, ]^<'i>f'rc, &c. (f). (b) Fock. Andr., Ivr. n'i. (/) Grotius. lutrod.. i. ,'), '22 ; (c) Grotius, Introd., ii. 11. 17: Rodenburg, Joe. cif., ii. 1, S, Jl ; J. Neostad., De Puctis Anten., 01«. o, G. Cos, Eechtsgel. Yerh., i. 14, 17 ; (r/) I'ock. Andr., loc n't.; Grotius, Groenewegeu, de Leg. Abr., Cod. iv. Introd., ii. 11, 17; Neostad., loc. 12, 1, 2; J. Yoet, Ad Pand., xxiii. n't. ; IIoU. Cons., i. Cons. 151, 2, 53, 54 ; Neostad., De Pactis (iuaest. 2 ; J. Voet, Ad Pand., xxiii. Anten., Obs. ix. in Jin.; HoU. Cons., 2. 52. ii. Cons. 79, and iv. Cons. 266 ; A. v. {(') This seems not to have been the Wesel, de Con. Societ., ii. 1, 93, and caso in Utrecht; A. Matth., de ii. 3, 119 << ^er/. ; de Damni inter ConJ. Aiict., i. 11, 44, 45; J. Yoet, Ad Comm., tr. ii. 3, 52; v. Someron, do Pand., xxiii. 2, 52. Jure Noverc, viii. 5, 6. POST-NUPTIAL OBLIGATIONS. 405 Tlie wife l)ecciijie liable, not only for the debts of her husband, but even for the liabilities which he had incurred. If he had been appointed guardian, the wife was, e(pially with him, accountable for his administration of the minor's estate, and bound to make good any debt owing as the result of that administration (//). Maintenance owed by the husband to an illegitimate child pro- created by him alante inairimonio became a common debt, if his wife had condoned the adultery. The wife's liability ceased after the death of her husband, as the father's liability for maintenance of his illegitimate children ceased with their father's death (/?). Costs adjudged in a civil suit, and penalties imposed for the non- performance of a contract against the husband were liabilities of the community (/). A pecuniary penalty imposed by judicial sentence for a crime committed by either of the spouses fell on the offender alone, and was not chargeable against the community {k). Some of the town " keuren," and some of the authorities, drew a distinction in this respect between more and less serious crimes, and charged the penalties imposed for the latter to the community, but not those imposed for the former. In the same way the pecuniary consequences of a crime committed in protecting the property of the community, or which had been beneficial, were considered to be recoverable from the community (/). If the husband liad committed an offence which had made his property liable to confiscation, the wife's interest in the community ((/) J. Voet, Ad Pand., xxiii. 2, (k) Grotius, de Jure Belli ac Pacis, 53; Eodenburg, de Jure Conn., i. ii. 21, 12; IIoll. Cons., v. Cons. 62 ; 5 ill fin.; Fock. Andr., ]5ijdrageii, A. v. Wesel, l(w. cit., tr. ii. 3, 56 — 59; ii. 59; v. Sande, Dec. Fris., ii. 5, Eodenburg, de Jure Conn., ii. 2, 6; Def. 8; J. Cos, Eechtsgel. Verb., i. 13. Stockmans, Decis., Iv. 5 ; v. Sande, (7i) Holl. Cons., i. Cons. 39 ; and Decis. Fris., ii. o, Def. 8; J. Cos, iii. a. Cons. 165; Schorer, Notes ad Eegtsgel. Verb., i. 19; Boel-Loenius, Grot. Introd., ii. 11, 10 ; J. Voet, Ad Decis., xcix. 640; V. d. Keessel, Pand., xxiii. 2, 2S ; J. Cos, Eegtsgel. Thes. Sel., Thes. 225. Verb., i. 17 ; r^ybreghts, Eeden. (/) L. Goris, Advers., i. 4, 7 ; Vertoog, ii. 10, 16. Groenewegeu, de Leg. Abr., Cod. iv. (i) Groenewegeu, de Leg. Abr., 12, 3; J. Cos, Eechtsgel. Verb., i. Cod. iv. 12, 2 ; A. v. Wesel, de Damni 19 ; Fook. Andr., Bijdragen, ii. 117 ; inter Conj. Coniin. ii. 3, 70, 72 ; Lybregbts, Eeden. Vertoog, i. 10, 16, Eodenburg, de Jure Conn., ii. 2, S, seems of opinion tbat all pecuniary and ii. 3, 16. penalties become common. 406 EFFECT OF MARRIAGE ON PROPERTY — ROMAN-DUTCH LAW. was protected, and the husband's moiety only would be taken in execution {m). A pecuniary penalty to which the wife was condemned, might be enforced, stcuttc malrimonio, b}^ execution against the community, although tlie liusl)and would tliereb}' suffer for an ofience of which he was innocent. The adoption of this principle was justified on public grounds, because, if its execution were suspended until the dissolution of the marriage, the offence would remain unpunished in the meantime («). The husband was, however, indemnified on the termination of the community by obtaining repayment from the wife's share (o). Penalties which were not the result of a criminal action were chargeable against the community (^)). Besides debts contracted by the husband, there were other charges by which the property in community was affected. Donations made by the husband stante matrimonio were charged to the community, unless they were made infraudem uxoris (q). Donations made by the father to his children, either at their marriage or to set them up in trade, were equally charged to the community, unless made in fyaudem vxoris (?•). The same was the case with donations made during a second marriage to the children of the first marriage, and the costs of maintaining and educating them, unless they had proi>erly of their own. Some authors were of opinion that half of any gift should be refunded to the second wife (.s) . All funeral exj^enses and liabilities incurred after and on account of the death of one of the spouses were charged to the heirs of the deceased, and did not form part of the community (/). (to) Grotius, Iiitrod., i. ■'>, 22 ; J. Cos, Eep:tsgel. Yerh., i. lo. 8cliorer, Notes ad Grot. lutrod., i. 5. (r) J. Voet, Ad Pand., xxiii. 2, 8, 22 ; Groencwegen, de Leg. Abr., Cod. and xxiii. 3, lo ; J. Cos, Regtsgel. iv. 12. .'{; V. d. Koessel, Tho.s. Sel., Yerh., i. 1(5, and autliois quoted. Tlies. !)4. (.s) J. Yoot, Ad rand., xxiii. ;i, Hi. (w.) A. V. We.sel, /oc. ) l{ndeiil)urg. de Jure Conn., ii. 191 ; dePactis Dotal., ii. 3, 34 ; Kodcn- 2, ;'). burg, do Jure Conn., 1, ii. 12, 15; v. (/') •'^. Cijs, Eechtngel. Yerh., i. 1!» Sonieren, do Jure Noverc. ii. 1, 2; rii Jill. cf. itlso Sclioror, Not' s ad Grot. Introd., (7) A. V. We-sol, Inc. rit., ii. .'i, ;J7 ; ii. 11, 10, and ii. 11, 17. PfKlf iiburg, do Jure Conn., ii. 2, 10 ; (/) A. v. Wesel, lor. n't., ii. ;{, 37; COM MUNI QUuESTUUM. 407 HI. Commumo Qnai^tuum. In the Provinces of Friesland, Drenthe, and Groningeu (exclusive of the town), if a liusl)and and wife had l)een married w'ithout an ante-nupfcial contract, and in any of the other Provinces, if they had either by ante-nuptial contract adopted the conrniunio qiicestmim, or by such contract excluded the comntnnio o))in{uni hoiiorum without more, and without stipulating anything to the contrary, then the ronim.iinio qucestimm was the legal consequence of their marriage. The distinction between the two kinds of community was the strict exclusion from the roiitiiiiiiiio qKo'stiiiiin of everything in which either the husband or the wife could be deemed to have had any proprietary right antecedent to the marriage. (a) Assets of the Communio Qusestuum. — The conununity consisted of all goods which were acquired l)y either the husband or the wife during marriage, and M'ere comprised in the word qiiceslns (profits), that is to sa^', lucrum quod ex ciiiptioin', vencUtionc, loeatione, con- dnctione descendit (a) or qucestus intdUfiitur, qui ex opcris cnjuHque descendit {h). The term qucestus comprised everything which was acquired through art, trade, or by any other similar means (r;) ; the term "profits" might be defined generally as including all fruits, income, and benefits which a person derived from his goods, or obtained through his industry, work, science, art, business, pro- fession, or the like, or acquired through good fortune, and which increased his possessions. The best definition is that which places the subjects of qu■). Thus an island added to land belonging to either the husband or the wife by alliirio (if this were not brought about by artificial means), a rise in the price of landed property, of houses, and of shares and stocks belonging to either of the spouses, did not fall into the community (s). b. Ante -nuptial Title. — Property which was acquired staiite matri- monio, but by a title which came into existence before the marriage was contracted. An estate purchased before marriage by either of the spouses, {m) A. Matth., Paroem. Belg., (7) A. v. Wesel, lor. n't., ii. 2, IGl ; L'aroem. iii. 27 ; A. v. Wesel, Io<\ cit., J. Voet, Ad Panel., vii. 1, 28, 29. ii. 2, 149; J. Voet, Acl Paml., xxiii. (/) Lybreghts, Eedeu. Vertong, i. 87. 4, 32. (■--•) Holl. Cons., i. Cons. 1, and (h) A. V. Wesel, /oc. c/Y., ii. 2, 14.J. ii. Cons. 302; Schorer, Notes ad {<)) A. V. Wesel, /w. cif., ii. 2, KJl. Grot. Introtl., ii. 12, 11 ; V. d. Bsrg. (^)) A. V. Wesel, lor. n'f., ii. 2, ItJl ; Ned. Advysl>oek, iv. Cons. 32 in Jin. : J. Voet, Ad Pand., vii. 1. 2S— 29. J. Voet, Ad Paud., xxiii. 4, 47. 410 EBTECT OF MARRIAGE ON PROPERTY — ROMAN-DUTCH LAW. but delivered after the marriage had been contracted, did not form part of this community, but remained tlie sole propert}' of the purchaser, even if tbe purchase price had been paid out of funds which had become common bet\Yeen the husband and the \Yife. In this case the other party could, on dissolution of the marriage, claim lialf of the money so used for the purchase. The deliver}' of the estate was considered as tbe consequence of the contract of purchase and sale which gave the purchaser a personal action against the vendor (t). Even if the purchase had been made conditionally, or if it had been stipulated that the delivery and the paj'ment should take place at a date subsequent to the marriage, the contract was considered to have been concluded before the marriage, and to carry its consequences with it after the marriage, and the price paid for it was treated as a debt contracted before the marriage, Init paid out of the common fund (a). On tlie other hand, if the estate were purchased stante matrimoiiio, although not paid for until after its dissolution, it would form part of the community (/>). If, by ante-nuptial contract, it had been stipulated that the money brought by the wife should be invested in the purchase of an estate, the view was advanced that the first purchase by the husband stante iiuitiiiiioitio should be deemed to have been made in performance of the stipulation, and the {)roj)erty should be deemed to belong to the wife and form part of her separate estate (c). But the better opinion was that, as the husband administered the property of himself and his wife, and anything bought by him became part of the community, unless he expressly stipulated that his purchase was made for and on behalf of hit- wife, so the purchase made in order to carry out a stipulation contained in a marriage contract would become part of the community, unless the purchase (/) J. Vot't, Ad riind., xxiii. i, IW : Verb., iii. 4. A. V. Wesel, de Quaest. inter. Coiij. (a) J. Yoet, Ad Pand., xxiii. 4, 39; Com., ii. 2, 18 ; Stockmaiis, T)eci.s., v. 8ande, Dccis. Fiis., ii. a, Def. 3, iv Dec. Iii. and cxxi. 10; Iloll. Cons., verbis, "Similiter si ante"; J. Cos, iii b., Con.s. JS ; N. Valla, de Rob. Dub. Recbtsgel. Verb., iii. 4; loitnu A. y. . .>,Dcf'. 3, JH jv-j/;/!', " soliito cnim matri- (/») v. Sandc, Decis. Fris., ii. u, 3: monio"; v. Someren, do Jure Noverc, "Soluto cnim matrimonio," in fine ; i. *; ; A. MiilUi., I'aroem. IJelg., A. v. "Wosel, lor. cii., ii. 'J, 'J2. • '••'iMi'iii. ii. 11 ; J. Cos, Regtsgel. {<•) A. v. Wescl, lor. rit., ii. 2. 21. EXCLUSIONS FROM COMMUNIO QUJESTUVM. 411 ) A. v. Wcsi'l, /<-<•. at., ii. 2. Iii- .Vh EXCLUSIONS KHOM (OMMI MO ^ / \ 7;S77 7 M/ . 413 Anything which \vas written off from the inventory, made at the commencement of the marriage of property belonging to either of the spouses, ceased to be separate property, and anything which had been acquired by means of it did not take its place, unless it clearly appeared that such was the intention, and that intention had been clearly expressed at the time when such transaction was carried out. This was so in the case of sale and purchase, as well as in the case of an e\Q\\n.\igQ {yermutatio){i)). It did not affect the right of the wife, after dissolution of the marriage, to demand restitution of what appeared on that inventory to have been hers at the commencement of the marriage, or compensation if it could not be accounted for and had not been replaced by other property of equal value {q). Property which had been acquired stante matriinoiiiohy vsucapio, or by judgment (adjudicatio), became part of the community only if these titles had their commencement and completion during the community. If, in the one case, the party's honajide possession had commenced, although the time during which such possession must continue had not elapsed before the marriage, or, if, in the other case, the suit had been instituted before the marriage, although judgment had not been given until after the marriage had been solemnised, the property so acquired would retain its former character, and would not be part of the community (r). Property might also have been acquired by compromise {trans- actio). Some jurists were of opinion that if the party against whom the suit was instituted, were in possession of the property in dispute before the marriage, and put an end to such suit by paying a certain sum of money to his or her adversary, he or she ought, from the presumption of the law in favour of possession, to be Eodeuburg, de Jure Conn., ii. 4, 27 ; notes by Groenewegen, ad loc. cit. ; V. Sande, Decis. Fris., ii. o, Def. 3, in J. Voet, Ad Pand., xxiii. 4,35; A. v. rerhis "Quod si maritus"; J. Cos, Wesel, Joe. cit., ii. 2, 49; v. Sande, Eeclitsgel. Verb., iii. 10 ; contra, A. Decis. Fris., ii. o, Def. 3, in verbis Mattb., Paroem. Belg., Paroem. iii. " Sohito enim niatrimonio." 13 et seci. ; L. Goris, Adv., i. b, b. (r) v. Someren, de Jure Noverc, i. (j?) V. Sande, Decis. Fris., ii. 5, 7; A. Mattb., Paroem. Belg., Paroem. Def. 3, in verbis " Ees permutata" ; ii. 23; A. v. "Wesel, /oc. cit., ii. 2, 77 — J. Voet, Ad Pand., xxiii. 4, 35 ; J. Cos, 80 ; J. Yoet, Ad Pand., xxiii. 4, 39 in Eecbtsgel. Verb., iii. 11 ; contra, A. v. Jin. and 40 ; J. Cos, Eecbtsgel. Verb., Wesel, loc. cit., ii. 2, 55. iii. 14. {q) Grotius, Introd., ii. 12, 15, and 414 p:i"fect of marriage on property — roman-dutch law. deemed to have liad a good title when tlie suit was instituted, and the property ought not to be considered as an acquisition ; but that, on the other hand, if he or she had not been in posses- sion before the marriage, and had, by the compromise, procured its delivery by his or her adver^^ary, it ought to be deemed an ac([iia;sttiH and included in the community (s). Other jui ists considered that this question depended on the pro- portion which the sum given as a compromise bore to the value of the property in dispute. If the sum were large, they treated the compromise as a purchase (/). If the husband granted rights (jina iti re aliciia) on his estate or on that of his wife, with her consent, and reserved to himself or her an annual rent, these respective interests would continue to belong to him or her exclusively, and would not be the subject of the community (a). If, on the other hand, the husband acquired full ownership of an estate in which he already possessed a jus in re, that estate would belong exclusively to himself, and not to the community (b). In order to prove the separate property of the husband and the wife, it was usual to attach an inventory of all the possessions to the ante-nuptial contract. If this were either not done or improperly- done, proof could be given aliunde. If it were doubtful whether the estate belonged exclusively to either the husband or wife at the time of the marriage, or had been acquired stante matrintonio, the law established certain presumptions. If either of the spouses were in possession of the property before the marriage, the law presumed that the tUnniniuvi was also in the possessor, unless the other spouse proved that ihere was possession only, and that the doininiuni had been acquired stante matrini(»iio. On the other hand, if staute viatiimonio the husband and wife for the first time had possession of an estate, the law presumed that it was an acquisition, and the amis jjiiihandi rested on the party who alleged that it was derived by succession or by some other title which had its existence before the marriage (c). (s) A. V. Wfscl, /"C. ciL, ii. 2, 67 and J. Voet, Ad rand., xxiii. 4, 42. 68; J. V< c\, Ad Pund., xxiii. 4, 40. (r) A. Matth., Paroem. Belg., (0 A. V. Wcsel, l) A. V. AVcsel, loc. cit., ii. 2, 7;^— Sel., Thes. 230. 75 ; Corcn, Coii.sil., xviii. 38 hi nolis; SUCCKSSIONS — DONATIONS. 415 c. Successions. — In view of the general rule that property, acquired staiite matiimomo hut hy a title which came into existence pre- viously to the marriage, did not fall under qtur.stuH and remained excluded from the community, some authors extended this rale to property acquired during marriage hy succession, whether by will or ah intestato, unless it had been stipulated to the contrary either in the will or in the ante-nuptial contract (d). Others distinguished between inheritances which came from blood relations and devolved on either the husband or wife jure savguinia, whether ah intestato or by testamentary bequest. Such property was excluded from the community, because it was con- sidered that the acquisition was in consequence of a right which was already in existence before the marriage, either by law or by nature, and recognised by the testator. If the testator, however, were a stranger in blood, to whose goods no right could exist before marriage, such exclusion would not exist. Proi)erty devised to either of the spouses by a person who was not a parent nor a relation by blood would become part of the community. Upon the same principle these authors excluded from the community a legacy given by a parent, or other relation, for it was in some degree a discharge of a natural debt which he owed, but no such debt was due by a stranger, and, therefore, a legacy given by a stranger was deemed part of the community (e). A third group of authorities were of opinion that it depended upon the words used in the marriage articles for the exclusion of the communio omnium boiioruui. If only i^resent goods had been mentioned as being excluded from the community, and not future ones, the inheritance and legacies were considered to become common property ( / ). Donations. — A similar difference of opinion existed on the question whether donations were included in the community (r/). ((/) Grotivis, Introd., ii. 12, 11, and Pand., xxiii. 4, 43; J. v. Someien,. iii. 21, 10; V. d. Keessel, Thes. Sel., de Jure Noverc, iii. 7, 8; J. Cos, Thes. 252; Holl. Cons., iiib., Cons. Eegtsgel. Verb., iii. 15—17. 54, sub. 4, and vi. 2nd part, Cons. 208. ( /) Neostad., De Pact. Anten., Obs> See, bowevef, to tbe contrary, Holl. iv. note //Mioi/s (a); L3bregbt8, Eeden^ Cons., vi. 1st part, Cons. 40 on p. 75, V'ertoog, i. 88 ; Holl. Cons. vi. 1st 4°, and Cons. 90. part, Cons. 40, 4°, and Cons. 90 ; vi. ('-) A. V. Wesel, de Quaest. inter 2u(l part, Cons. 174. Conj. Com., ii. 2, 81—83 ; J. Voet, Ad {(/) J. Cos, Eegtsgel. Verb., iii, 18.. 41(; Kl-FKCT OF -MAKRIAGK ON PROPERTY ROMAN-DUTCH LAW. In FriesUand, at first, distinction was made between donations on the one hand and inheritances and legacies on the other. Donations were considered to beconie part of the community of protit and loss, but inheritances and legacies were not. Afterwards this difference disappeared, and all acquisitions of this kind, together with annuities, were excluded by law from the community of profit and loss (Ji). In the other Provinces some jurists placed donations on the same footing as inheritances and legacies, and without drawing any dis- tinction as to their origin excluded them from the community as not being the fruits of labour and industry or personal enterprise (i). Others, arguing in the same strain, made the same distinction with regard to origin in the case of donations as they did in the case of inheritances and legacies, and considered that dona- tions made hj those to whom, either in the direct or collateral line, the donee would have succeeded al> iiitcstato, were to be deemed the exclusive property of the donee, and did not form part of the community (k). Thus the share of the succession which the husband had acquired l)y his sister having renounced it in his favour was to be deemed his exclusive property, unless he had purchased it from her (/). Others, again, excluded donations made by parents to children, but included those which were made by collaterals or strangers (vi), Thus the question whether inheritances, legacies, and donations to which either the husband or the wife became entitled staiiir iiiatiinioiiio should be considered as 7//cf.s/((.s remained undecided (v/)- (b) Liabilities of the Comnmnio ftuaestimm.^ — In the same way as ' (/() A'. Sande, Decis. Fris., ii. <>, l)ef. (/.) Christinaeus ad L. L. Mech., ix. -'3, 4 ; Huber, TIedend. Ecgtsgel.,i. 2, :>, 1 /// ^/f'/is; A. v.Wesel, /oc. f;tY.,nn. 93. 16 — IS ; Statuten van Fiiesland, 1732, 91 ; J. Voet, Ad Pand., xxiii. 4, 45 ; A. i. 3, arts. — S. Matth., Paroem.Belg., Paroem. iii. 8 ; (/■) Coren, Cons., xviii. ii. 23; A. v. Eodenburg, de Jure Conn., ii. 1, 10. Wesel, de Quaest. inter Conj. Coinni., (/) A. v. AVesel, loc. cH., n. 103. tr. ii. 3, 91 ; Grotius, Introd., ii. 12, 11, {m) Vulla, de Dubiis, tr. xiii. 2. and iii. 21, 10; V. d. Keessel, Thes. Sel.. {ti) .Scborer, Notes ad Grot. Introd., Thes. 252 ; Van Leeuwen, E. II. E.,iv. ii. 12, 11; Bynkerslioek, Quaest. Jur. 24, (>; Van Leeuwen, Cens. For., i. 1, Priv., ii. 2, 5, /// verhis "Satis dispu- 12, nn. IS, 19, and authors quoted; tandum est"; Eegtsgel., Obsorv., iv. HoU. Cons., iiib.. Cons. 58, and v. Obs. 26, and authors there quoted ; J. Cons. 76; Everhardus, Jur. Con.s.. \oet, Ad I'and., xxiii. 4, 39 and 199. xxiii. 2, 1 rt sf'i/. COMMUNIO q U^STUUM — LIABILITIES . 417 the assets of the communio quastiium were limited to acquisitions made stantr matrimonio, so the joint liabilities of husband and wife who had excluded the commmiio omnium honornm comprised such only as had been contracted during the marriage by either of them, as far as they could validly bind themselves (o). They covered, generally speaking, such liabilities as the commmiio omnium honornm became charged with during matrimony, exclusive of those only which were inconsistent with the idea of a community limited in time and in purpose. Debts contracted by the husband or the wife previously to the marriage never became common, but remained chargeable to the person who contracted them and his or her estate only. They could be sued for either during the marriage or after the dissolution thereof, and the debtor, after paying them, had no redress what- ever nor any claim for contribution against the other party to the marriage contract {p). As regards liabilities contracted during the marriage, those incurred by the husband in exercising his jus mariti were binding on the wife and her estate in the same way as they were binding on the community in the case of a communio omnium honornm. But anything which affected the estate of one of the spouses, or which could only affect the community on account of its happening stante matrimonio, either did not affect the community at all, or did so only under certain circumstances. As between the husband and wife, the liability consisted in the property of either of them being applied to the payment of a moiety of the matrimonial debts ; and if either of them had not brought any property into the community, or was burdened with debts, or if the whole of the property belonging to either of them had been dissipated stante matrimonio, it would follow that the property of the other would be applied in paying the whole of the debts made during marriage. On account of this liability the community was called communio damni as well as lacri. The damnum which was the subject of the community must be that quod ex causa societatis et juris maritalis non aliunde accidit. An (o) Fock. Andr., Bijdragen, ii. Def. 8 ; Huber, Hedend. Rechtsgel., i. pp. 59 — 116, seriatim. 1, 11, 4; J. Voet, Ad Pand., xxiii. 4. (/>) V. Sande, Decis. Fris., ii. 5, 50; J. Cos, Eegtsgel. Verh., iii. 21. M.L. 27 41 8 EFFECT OF MARRIAGE ON PROPERTY — ROMAN-DUTCH LAW. accidental loss to the property beloiifring to either of the spouses was not shared by the party whose property had not been affected. Diminution in the vahie of such property, its destruction and loss through iire, the insolvency of debtors to either estate, and similar losses, iiad to be borne by the party concerned as owner, and did not form a loss to the community (q). A similar rule existed regarding all expenses incurred which miglit be considered extraordinai-y or useless. These could only be charged to the estate on which they had been bestowed, and it the husband, on account of his marital power, had ordered them for his wife's estate, her proj^erty alone would have to pay the expendi- ture, and the husband could not be made to contribute (r). All other expenses incurred by the husband — those called 2it>les and necess((rice — became charges of the community, and were com- pensated by the increase in value of the estate on which thev were bestowed, though there was diversity of opinion as to the extent of such compensation (s). On the other hand, a gift made by the husband to children of a former marriage could not be charged to the second wife's estate if, in the case of the second marriage, the cominiiiuo osmium honoriim had been excluded. Though the wife could not recall the gift, the amount of the donation would be deducted from the common fund before it was divided at the time of the dissolution (i). Obligations entered into by the husband as a surety were not chargeable to the wife (")• (5) A. v.Wesel, deDamniinterConj. V. d. Keegsel, Thes. Sel., Thes. 2.)7 ; Comiii., tr. ii. 3, 14; iiodenbiu'g, de v. Saiide, Decis. Fiis., ii. 5, Def. o, in Jur. Couu., ii. 1, 12 ; Cuien, Cons., verbis " Reixiratioues," and Def. 8 pr. xxviii. ;58; L. Goiis, In Advers.,tr. i. 4, and in rerhis '" Porio danmi," and iii. 14: in iH.tis ; v. Sande, Decis. i'lis., ii. 15, 4 ; J. Cos, Reclits>:el. Verh., iii. 2, 3, 5, Def. 8; Grotius, liitrod., ii. 12, 15, and auth.as quoted; v. Souieien, de aud Groenewegens Notes at Grot. Jure Noverc, xii. 5. Intiod. loc. cit. ; J. Voet, Ad Pand., {t) J. Voet, Ad Pand., xxiii. 3, 16; xxiii. 1, 4;» ; V. d. Keessel, Tlies. Sel., J. Cos, liegts;:el. Verb., iii. 21. Thes. 257 ; Holl. Cons., i. Cons. i. (u) Groenewegen, De Leg. Abr.,. p. 1, andii. Coijs. 170,284 326. p. 655 ; Cod. iv., 12, 8; J. Voet, Ad Puud., J. Cos, i;egtsgel. Verb, iii. 22, 23, and xxiii. 2, 53; v. Samle, Decis. Fris., ii. authoie quoted. 5, J)ef. 8, iu vtrhis^' An etiaiu "; Jur. (7) J. Voet, Ad Pand., xxv. 1, 2; Pris., 82, 12, 14; Statuten en Ord., A. V. W'esei, de Quaest. inter Conj. 1723, i. 3 i 5, Hot'., 1631 ; A. v. Wesel, Coujiu., tr. ii. 2, 17'J, Iii. lor. at. ii. 3, 45, 46; J. Cos, Kecbtsgel. («) J. Voet, Ad Piiiid., xxv. 1,3; Verb., iii. H. COMMUNITY IN COLONIES — SOUTH AFRICA. 419 Pecuniary penalties were not chargeable to the innocent j'arty, except in so far as the community had profited by the proceeds of the delict for which a penalty had been imposed (a). Community in Colonies, — South Africa. — The above-mentioned rules of the Roman-Dutch law with regard to the consequences of marriage on the property of husband and wife, in case no special regulations were made to the contrary — i.e., the community of goods and of profit and loss — are in force in the Union of South Africa (/>), and Southern Rhodesia (6). Act 13 of 18!)1 of the Cape Colonj' excludes policies of insurance from the connn unity of pro[)erty between spouses, subject to certain conditions and limitations (c). Natal.— Law No. 22 of 1863 as amended by Law No. 17 of 1871 and Law No. 14 of 1882 has somewhat modified the common law principle that community of goods is the legal consequence of any marriage between spouses whose matrimonial domicil is in Natal unless specially excluded by ante-nuptial contract. The law of 1863 excludes community of goods (and all liabilities and privileges resulting therefrom) from all marriages solemnised or to be solemnised outside South Africa irrespective of the matrimonial domicil of the si)0uses, unless the jiarties to such marriages by instrument in writing duly registered express their wish that the provisions of that law shall not apply to their marriage ((/). With regard to marriages already solemnised in Natal or else- where in South Africa the spouses can bring themselves under the provisions of the law, if they express their wish to that effect by a post-nuptial contract (duly registered with the Registrar of Deeds) (e). Lhw No. 14 of 1882 extends the same privileges to future marriages solemnised in Natal or elsewhere in South Africa («) V. Sande, Decs. Fiis., ii. 5, 8, The Common Law of South Africa, i., iji I'f-r/yis " Similiter si maritus." pars. 397 — 405, on pp. 230-236; (6) Maas lorp, liistitiues of Cape lloos-Keitz, Principles of Komau- Law, 2n(i ed., i. 5, on pp. 34—39 ; i. 6, Dutch Law, pp. 17, 18. on pp. oG— 6o ; i. 9, pp. 96 — 99; (' ) Ss. 17 (( sei/. L)e Bruyu, Opinions of Grotius ; {d) S. 2. Morice, The Lnyiish and lloman- (e) Roy and Taylor v. Sturrock and Dutch Law, 2nd ed., pp. 8—10; others (1900), 21 N. L. R. 11; L. B. J. W. Wessels, History of Kouian- (1900) A. C. 225. Dutch Law, pp. 453 — 457 ; Nathan, 27—2 420 EFFECT OF MARRIAGE ON PROPERTY — ROMAN-DUTCH LAW. by providing that the intended husband and wife can bring themselves under the provisions of Law 22 of 1863 by a duly registered ante-nuptial contract or other instrument in writing expressing their wish to that effect (/). The matrimonial refjimc with regard to the property of persons who have not brought themselves under the provisions of Law 22 of 1863 nor excluded community of property by ante-nuptial contract remains that of the communio omnium honorum of the Roman-Dutch law. Law of Ceylon. — The law as to the property of spouses in Ceylon is governed by the Matrimonial Eights and Inheritance Ordinance, 1876 {g), which was proclaimed on June 29th, 1877. A woman, marrying after the Ordinance a man of a different race or nationality from her own, is taken to be of the same race and nationality as her husband, for all the purposes of the Ordinance, so long as the marriage subsists and until she marries again. Save to this extent the Ordinance does not apply to Kandyans or Muhammadans, or to Tamils of the Northern Province who are subject to the Thesavalamai (//). The right of spouses married before the Ordinance are governed by the pre-existing law (i). Those of spouses married after the Ordinance, and domiciled and resident in Ceylon, are, during the subsistence of the marriage and the domicil, governed in respect of movable property by the provisions of the Ordinance (A;). So are the rights of all spouses married after the Ordinance as to immovable property in Ceylon (/). Communio honorum is no longer a consequence of marriage in respect of either movable or immovable property (?n). Immovable property to which a woman, married after the proclamation of the Ordinance, was entitled at the time of her marriage or has become entitled to since, subject to the trusts of any will or settlement affecting it, belongs to her as her separate estate, and can be disposed (/) Se. 1 and 2. lias abrogated, by implication, tho old {g) No. 15 of 1876, as amended by customary law of the Mukkuvars of Ords. 2 of 1889 and 3 of 1890. Batticaloa to which it contains no (A) 8. 2. It has been suggested reference. (but apparently there is no decision on {i) S. 5. the point, which was raised, however, {k) S. 6. in a recent case — S. C. No. 26 C. E. {J) S. 7. Batticaloa No. 13793, S. C. Mins., (»') !^- ^• July 6th, 1909) that the saving clause LAW OF CEYLON. 421 of by her by any lawful act inter vivos (ii), with her husband's written consent, or by last will without such consent (o). A married woman has the same rights in regard to her wages and earnings as in England (j>). All jewels and personal ornaments belonging to a married woman, all tools and implements of husbandry used by her in carrying on a trade separately from her husband (q), and all implements of husbandry and live or dead stock, belonging to her daring marriage and bond fide kept imon and employed for the cultivation or proper uses of her immovable property, are her separate estate, and, subject to the trusts of any will or settlement affecting them, may be disposed of by her by act inter vivos with her husband's written consent, or by last will without such consent, as if she were unmarried (r). The husband's consent may be judicially dispensed with (s). Donations inter conjiiges, whether the spouses were married before or after the Ordinance, and whether in community as to property or not, are valid (t). When a question arises as to the mode and time of any acquisition of property by a woman married after the Ordinance, or any person claiming under her, and any creditor or alienee of her husband, she or the person claiming under her must prove the manner and time at which she became entitled to the property (a). Provision is made for the summary decision of questions as to property arising between spouses whether married before or after the Ordinance (h). There are provisions similar to those of English law as to policies of insurance by spouses (c). All movable property {d) to which a woman married after the Ordinance was entitled at the time of her marriage, or becomes entitled during coverture, subject to any settlement (e) affecting it, and except so far as the Ordinance otherwise provides, vests absolutely in her husband (/ ). A married woman, having adequate separate property, (n) This includes a mortgage : (<) S. 13. Silva V. Dissanayake (1892), 2 C. L. E. (a) S, 14. 123; Marie Cangary v. Karuppasamy {bj S. 16. Cangany (1906), 10 N. L. K. 79. (c) Ss. 17, 18. (o) S. 9. (d) Including even a chose in action : {p) S. 10. Babapulle r. Eajaratnam (1900), d {q) A wife who is a, jJuhlica mercatrix N, L. E. 1. may sue alone: Fernando v. Jacobis («-) As to the meaning of "settle- Appu (1879), 2 S. C. 0. 204. ment" see In re Krickenbeck (1884), (r) S. 11. 6S. C. C. 132. (s) S. 12. (/) «. 19. 422 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. is as liable to maintain lier children as if she were a widow (c/). Nothing, however, in the Ordinance (//) relieves the husband from his liability (//) to maintain her children. The 6th section of the Placaat of October 4th, 1540, relating to marriage settlements, is not in force in Ceylon (t). Law of British Guiana. — In British Guiana the consequences of marriage on the property of the husband and wife are now regu- lated by the Married Persons' Property Ordinance, No. 12 of 1904, as amended l»y Ordinance No. 2 of 1905. Previously to that Ordinance this matter was regulated by the common law of the Colony, viz., the Eoman-Dutch law ; and with regard to all marriages solemnised before the commencement of the Ordinance of 1904 the rights of husband and wife to their property remain governed by the law which would have been applicable thereto if the Ordinance had not been passed (^'). With regard to all marriages solemnised after the com- mencement of the 1904 Ordinance, the respective matrimonial rights of husband and wife as to movable property are governed by the provisions of the Ordinance, if the married persons were or are at the time of their marriage domiciled or resident in the Colony. In respect of immovable property the provisions of the Ordinance apply, if such immovable propertj^ is situate in the Colony (k). Community of goods no longer exists between husband and wife as a consequence of marriage, either in respect of movable or immovable i)roperty(0, and the married woman is placed in a similar position to that which she has under the English Married Women's Property Act of 18(-i2. The law of British Guiana, how- ever, differs from the English statute in two respects, viz. : (1) The Ordinance of 1904 does not afifect proj^erty acquired after it came into force by persons married before its commencement (/»). (2) The Ordinance places the husband and wife in exactly the same position towards each other as ordinary creditors (n), IV. Termination oj the Coiiniiiiiiiti/. Dissolution of the Marriage. — General Law. — As the community had its origin in the lawful union of husband and wife, so it ceased {(/) 8. 22. (A) Ss. 4, 6. (/I) See Ord. 19 of 1889. (0 8. «. (i) S. 2:J. (»(,) S. a. (/)S. 3. (»)S. 9. TERMINATION OF COMMUNITY. 423 on their separation, uimmqiiodque eo gunere (lissdlvitur, quo coUigatum est {()) . This separation might take place (1) whilst the husband and wife were both alive ; or (2) it might be caused by the death of either ot the married persons. (1) Dissolution of the marriage during the lifetime of the spouses took place by judicial sentence pronouncing divorce between husband and wife on the ground of adultery or malicious deser- tion. With its dissolution all the consequences of the marriage ceased to exist. The community, and the husband's right of administering any of the wife's j^roperty, came to an end(^^), and each party became entitled to demand division of the common property, either according to the rules of the common law^ or according to the provisions of the ante-nuptial contract. The profits and losses {lucra et damna) on the respective shares of the divorced parties then became distinct from each other (q). If divorce were pronounced on account of adultery, the guilty party equally lost all advantages which he or she would otherwise be entitled to enjoy on account of such community or ante-nuptial contract (q). The community might, however, come to an end without the marriage itself being dissolved, viz., by a separatio a mensa et torn. The husband and wife might mutually agree to separate from bed and board and even divide the property which they held in common, but such a voluntary arrangement between the spouses could never affect the rights which third parties might have against the common property (/•). It was necessary for the separation to be pronounced by the Court and for the judgment to be published, in order to dissolve the community (s). There was, however, a controversy on the point whether the decree of separation was in itself sufficient to dissolve the community, or whether it was necessary that the Court should speci- fically pronounce such dissolution and determine its consequences. Those who were in favour of a specific dissolution by judicial decree held that, unless the judgment were accompanied by an interdict restraining the husband from interfering with his wife's property, (o) Dig. ; J. Voet, Ad Paiui. xxiv. i. 5, 20 ; J. Voet, Ad Pand., xxiv. 2, 3, 28. 19 ; Lybreghts, Eeden. Vertoog, i. 12, {p) Grotius, Introduction, i. b, 25; 22 — 23; J. Brouwer, De jure Conn, iii. 21, 11. ii. 29,4. {q) A. V. Wesel, de Fin. vel Cent. (s) Lybreghts, Keden. Vertooy i. 12, Com., tr, ii. 4, 27. 20—21. (r) iSchorer, Notes ad Grot. Introd., 424 EFFECT OF MARRIAGE ON PROPERTY — ROMAN-DUTCH LAW. it would not in any degree abridge his marital power in the administration and alienation of her property, or in his binding her and her property by his contracts, nor would it enable the wife to make any dispositions of her own (t). The husband and wife might agree upon a division of the connnunity and submit such agreement for sanction to the Court, but the Court was in no way bound and could exercise its discretion in the matter. If no such mutual arrangement had been made by the parties, either of the parties could request the Court to pronounce a dissolution of the communitj', and leave it to the Court to exercise its discretion on this point (a). On the other hand, a number of authorities held that the decree of separation carried with it, as a necessary consequence, the dis- solution of the community and the cessation of the marital power. In their opinion the separation had the effect of releasing the wife from all liability for her husband's debts and obligations, and of excluding the husband from the further administration of his wife's property (b). The separation terminated upon the reconciliation of the parties, •which ipso jure put an end to the consequences of the separation and restored the usual results of the marriage, viz., the marital power and the community, or the provisions of the ante-nuptial contract, as they had been before the separation took place (c). (2) The community was also terminated by the death of either of the spouses, and so completely, that a previous agreement that the heir should succeed to the community was held to be void (d). Colonies. — South Africa. — In the Colonies wheve comninnio honorum is recognised as the legal consequence of a marriage, the rules of Eoman-Dutch law above mentioned regarding the dissolution of the community are followed. (1 ) During the lifetime of husband and wife. The community is (/) J. Voet, Ad Pand., xxiv. 2, 17 ; Jur. Coiijug., iii. 1, 14; Arntzenius, Neofatad, de Pactis. Auten. Obs. 7, in Inst. Jur. Bel. Civ., iii. 295 ; Schorer, notig. et Obs. 8; Holl. Cons. iii. b, Notes ad Grot. lutrod., ii. 11, 17 ; Cons. 1352, on p. 708 (Grotius) ; Fock. Audr., Hot Oud Ned. B. R. ii. Bynkershoek, Quaest. Jur. Priv. ii. 9; 198. J. Cos, Huwelyck, par. 170, and (c) V. d. Linden, KoopmansMbk., i. Eechtsgel. Verb. vii. 34 ; V. d. Keessel, 3, 9, on p. 32. Thes. Sel., Thcs. 90. {d) A. v. Wesel, do Fin. vel Cent. (a) Holl. Cons. iii. b, Cons. 242 in Com. Bon. Soc, tr. ii. 4, 53; Grotius, /?nc (Grotius). lutrod., iii. 21, 11; Groouewcgeii, ad {b) A. V. Wesol, de Comni. Bon. ound. ; J. v. Sando, Dec. Fris. ii. 5, Socict., ii. 4, 38 ct se) A. v. Wesol, lor. rit., ii. -i, 134 et might arise in connection herewith cf. sc(j. CONTINUANCE OF COMMUNITY STATUTES OF BATAVIA. 433 parent was enabled to divide the estate, that is to say, to prove the shares of the children {hewys doen), either by dividing the estate into as many shares as there were participants, or by carefully fixing the shares of the children and having these set out in a notarial act, or by buying out the children under a compromise arranged with the children's representatives and sanctioned by the Orphan Chamber (c). Such a compromise {transactio) respecting the amount and value of the property of the deceased which had to be delivered to the children would have the effect of terminating the community. If the children had reason to believe that the share assigned to them was less than it ought to have been, they might require the inventory to be exhibited ; and if this fact was estab- lished, they could compel the survivor to make good to them the difference, with interest and profits ((/). Statutes of Batavia. — In the possessions of the Dutch East India Company no custom recognising the continued community seems to have existed and the statutes seem to have introduced it by way of punishment only {in i^wnam ncgligentia). The rules which appear in the Statutes of Batavia {e) only refer to estates to which minor children were entitled, and of which their surviving parent had delayed making an inventory. They were mainly to the following ef!"ect : — After the dissolution of the marriage by the death of either of the spouses, the survivor's duties were, if there were orphans (/), i.e., minor children of the marriage, within six weeks after the funeral, (1) to make an inventory, even if there were no assets at all or the liabilities were greater than the assets of the estate {g) ; (2) to prove {bewijs doeii) the property which was inherited by the children (h). The Orphan Masters had to summon the surviving parent to appear before them in order that such proof might be rendered (i) in the presence of friends of the deceased, who were equally summoned (c) Fock. Andr., Bijdragen, ii. 159 — par. 133, as children who have lost both 160, note 1. or either of their parents and have not (d) A. v.Wesel, /oc. ciY., ii. 4, 151, 152. yet attained the age of twenty-five (e) Nederlandsch-Indisch Plakaat- years. boek, vol. i., pp. 472 ei se^-, and vol. ix. [g] Nieuwe Statuten, loc. cit., (/) Eegtsgel. Obs., iii. Obs. 40, on pars. 15— 18. p. 118. Orphans are described in the (h) Ibid., par. 14. Nieuwe Statuten, Ned. Ind. Plakaat- (t) Ibid., par. 13. boek, vol. ix., voce " Orphan Masters," M.L. 28 434 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. to appear before the Orphan Masters together with the surviving parent (A). The survivor could not be released from this duty by will made by the predeceased parent (/), but the Orphan Masters were entitled, after having heard the next friends of tbe minors, to allow the survivor either to extend the period of six weeks, or to continue to administer the propert}^ as an undivided estate (//O? on giving sufficient security to the satisfaction of the Orphan Masters for the proper administration thereof {I). Unless other measures were taken, all property belonging to the minor children was taken into custody by the Orphan Masters, and if, during their minority, the orphans acquired any further property through inheritance, by way of legacy or donation, or otherwise, proof of such property had to be rendered to the Orj^ban Masters in a similar way and the property had to be handed to them for custody and administration, unless the surviving parent could give sufficient hypotbec, or at least two sureties, at the discretion of the Orphan Masters, as a guarantee for his proper administration (7?), Any property whatsoever acquired by minors after the death of either of the parents remained their own whether the community was continued or not, and the surviving parent could not in any way obtain any interest in it unless this had been sj)ecially provided in the will or the document containing the legac}- or donation (o). Penalties. — The non-observance of these rules carried serious con- sequences with it for the surviving parent. (1) The offender might be punished by fines (_?)) or by imprisonment until the provisions had been complied with, and an inventory and proof liad been rendered as well of the property passing on the death of the pre- deceased parent as on the further acquisition by the minors of property from others (q). At the same time the Orphan Masters were authorised, after the expiration of the period of six weeks, to go to the house of the surviving parent and make an inventory themselves. (2) If no inventory and proof had been rendered within (/.•) NieuweStatuten, /oc. r(7., par. 20. Marcli 16th, ITolJ. {1} /6td.., par. 18 ; resolution passed (0) //nW., par. 10 ; resolution March hy the Governor General in Council, 16th, 1753. September 14th, 1690. [p) Ibid., par. 28 ; resolution March (m) Ibid., par. 14. 16th, 1753. (n) //>/rZ.,par. 27 ; resolution passed {q) y/)iW.,par. 14. })}• the Governor General in Council, CONTINUANCE OF COMMUNITY — UNION OF SOUTH AFfllCA.. 435 six weeks after the funeral of the predeceased parent, the com- munity was considered to continue to the detriment of the surviving parent. All profits which accrued to the survivor after the period of six weeks — either through his or her own exertions or by way of inheritance or otherwise — formed part of the community. The children did not participate in any loss which might be suffered by the common jDroperty, and which had to be borne by the survivor exclusively (r). Payments of interest had to be made by the survivor out of his or her own share, and the common property could not be encumbered until the inventory had been made and proof had been sanctioned (s). All goods left out of the inventory were pre- sumed to have been the property of the children of the deceased (i). (3) No widow or widower who had minor children was allowed to re-marry unless proof of the property belonging to those minors had been previously rendered to the Orphan Chamber, or unless, with the consent of the Orphan Chamber and the nearest relatives, the property had been registered and left in the administration of the surviving parent under proper guarantee and surety for the safe administration thereof. Non-observance of this rule carried with it loss of one-eighth of the share belonging to the surviving parent for the benefit of the minor children (ii). Though the surviving parent could not benefit by any property left to the children, he or she was entitled to enjoy the interest of the minors' property until the minor children had reached the age of eighteen for sons, or fifteen for daughters, in consideration of the parents" liability to provide maintenance for their children. Colonies. — Union of South Africa. — Tlie absence of a universal rule in Eoman-Dutch law recognising the continuation of a community after the dissolution of a marriage by death of either of the spouses as part of the common law, and the diversity of local legislation on this point in the Dutch Eepublic, have resulted in rendering hocclel- lioudcrschap obsolete in South Africa. The South African legislatures have never sanctioned it, and the provisions of the Statutes of Batavia are only partly reflected in the Cape Ordinances of 1838. Unless specially directed by will or by agreement hoedelhouderschap may be said not to be recognised in South Africa (a). (r) NieuweStatuten, /oc. r/i., par. 30. [n) Ibid., par. 32. (s) Ihid., par. 31. (a) De Bruyn's Opinions of Grotius, (t) Ibid., par. 16. p. 51 ; Tennant, Notary's Manual, 28—2 -k'66 EFFECT OF MARRIAGE ON PROPERTY — ROMAN-DUTCH LAW. The introduction of a general system of administration and distribution of estates of deceased persons by executors and adminis- trators other than the heir or heirs of the deceased {h) has further assisted in rendering hoedelhouderschap, even under special testa- mentary directions, of rare occurrence. Cape Colony. — In the case of dissolution of a marriage between spouses who were married in community of property by the death of either of them, the joint estate remains under the charge of the survivor until the executors of the deceased or the Master of the Supreme Court, or, in case there are minor children left of the marriage, their tutor, testamentary or dative, or curator bonis, institute proceedings for the administration, distribution, and final settlement of the joint estate (c). In the meantime the surviving spouse is bound within six weeks after the death of the deceased to make an inventory of all property, goods, and effects, movable and immovable, of what kind soever, which at the time of the death form part of the joint estate, and to lodge this inventory with the Master of the Court (d). The survivor cannot be relieved of this duty by the will of the pre- deceasing spouse, but if the survivor has by will been appointed sole heir and sole executor of the predeceasing sj^ouse, he or she is not bound to frame an inventory or to lodge it with the Master (c). If there are minor children left of the marriage, the survivor has an additional duty to perform. Within the time named the sur- viving spouse is bound (1) to make an inventory ; (2) to prove (betcys doen) the property which is inherited by the minor children, that is to say, to ascertain and secure the minors' shares. The survivor can pay the amount thus ascertained and due to the minor children into the Guardians' Fund, under the administra- tion of the Master of the Sui)reme Court. It is customary, however, to leave the children's property under the administration of the survivor, and the survivor can apply for it. In that case, the survivor must bind himself or herself by bond, together with the p. 219 ; Maasdorp, Institutes of Cape (c) Ordinance 104 of July oth, 1833, Law, 2nd ed., i., p. 93 ; Wessels, His- s. 13. tory of R. D. Law, p. 4GG. ((/) Ibid., s. 14. {b) Introduced in the Cape Colony (e) Jbid., s. 18; Ordinance 10.3 of by Ordinance 104 of July 5th, 1833, July oth, 1833, s. 18; Act 27 of l89o, and afterwards followed by all other s. 3. Colonie.s in South Africa. CONTINUANCE OF CO^IMUNITY SOUTH AFRICA. 437 superintending guardians and with sureties, or, in some cases, with sureties only, for the due payment of the shares to the children on their attaining their majority or marrying. Such a bond passed by the surviving spouse for securing the inheritance due to the minor children from their predeceased parent is called kiiuJoix'ivj/s ( /'). A kiudcrbeirijs requires to be made before a notary public, and must be registered. It is the duty of the notary public to see that it is registered, under penalty of his becoming responsible for any losses which may occur (g). Minors have a tacit hypothec on the estate of their parents for the payment of the shares due to them out of the estate of the deceased, whether such inheritance is secured V)y kindcrheirys or not. The kinderhewt/s is considered as an additional security (li). The survivor is entitled to the usufruct of the estate, for the maintenance and education of the minor children. Penalties. — The statute provides penalties against the surviving spouse, if he wilfully neglects to cause an inventory to be made of the joint estate and to lodge this with the Master within the period named, or if he knowingly omits to enter in such inventory any article of property belonging to the joint estate. (a) To guard against such failure, it is provided that in the ultimate distribution of the estate the survivor shall, on the one hand, forfeit all rights to, and shares in, anything which ma}' accrue to the joint estate after the death of the predeceasing spouse and to any property omitted from the inventor}', and that, on the other hand, he shall " bear solely and exclusively all loss which shall have been caused by the destruction or deterioration of any property omitted from the inventory, or which shall have accrued to the joint estate after the death of the predeceasing spouse by the loss or deterioration of any part thereof " (0- (b) A widow or widower who has minor children may not enter upon a second marriage, nor can any Church or la}' official celebrate the second marriage, unless the parent who is re-marrying has pre- viously ascertained and secured the shares due to his or her minor (/■) Ordinance lOo of July 5th, (1869), Buch. 166; Jennings r. Tan 1833, s. 23. Wyk (1890), 7 S. C. E. 228 ; Van (g) Proclamation, iVEay 2ord, 1805, Eocyen v. McColl and Others (1885), s. 13; Ordinance 105 of 1833, s. 22; 3 8. C. E. 284. Act 9 of 1882, s. 6 ; Act 19 of 1891, s. 9. {{) Ordinance 104 of July 5th, 1833, (/j) Naude v. Naude's Trustees s. 15. 438 EFFECT OF MAERIAGE ON PROPERTY ROMAN-DUTCH LAW. children in the inheritance of their predeceased parent, either by paving them into the Guardian's Fund or by deed of Idnderhewjis (J). Any parent re-marrying in defiance of this provision forfeits one- fourth of his or her share in the joint estate for the benefit of his or her minor children of the first marriage (k). Boedelhoiiderschap. — The community may be " continued " at the will of the persons interested. (a) If, at the dissohition of the marriage by the death of either of the spouses, minor children are left of the marriage, the survivor may by will of the first dying spouse be appointed executor of his or her will, guardian of the minor children, and administrator of the joint estate during the minority of the children (l), and directions be given that the estate shall remain in community . between the survivor and the minor children (w). This community is continued until the majority of the children, or such time as may be provided by the will of the predeceasing spouse. The children remain liable for the debts incurred by the survivor in connection with the administration. (b) Such a continuation of the community ma}^ also be provided for by agreement between the survivor and the children of the marriage, if they are of age at the death of the first dying, or between the survivor and the next of kin, or by ante-nuptial contract between the s^Douses (n). Similar rules are in force in the other parts of the Union and Southern Rhodesia {o). Ceylon. — The recognition of continued community and hoedcl- homhrschap in Ceylon seems to be doubtful (^0. The Statutes of Batavia have not been followed by further statu- tory rules. They are of practical interest only with regard to (,/) Proclamation of May 23rd, 1805, Proclamation 28 of 1902, ss. 51, 59, 63, s. 14 ; Ordiuance 105 of July 5tb, 1833, 64 ; (Transvaal) Law 5 of 1882, s. 5 ; 8. 22; Act 12 of 1856; Act 9 of 1882, (S. Ehodesia) Order in Council, Octo- s. 6. ber 22nd, 1889, s. 41 ; Proclamation, (/.•) Ordinance 105 of July 5th, 1S33, June Uth, 1899 ; Natal Bank v. 11. T. 8. 22. Hood and Others, T. S. 1909, 243, and (/) Ordinance 101 of July .Ith, 1833, (1910) A. C. 570; 26 T. L. R. 622. 88. 28, 37. (rt) Pereu-a, Laws of Ceylon, ii. 125, (?n) Cloetev.Cloete's Trustees (1887), 130; Case No. 21,043, District Court 5 S. C. E. 66. of Colombo, Yaud., App. C. p. xlvi. : (h) Maiisdorp, 2nd od., i. 236. Wyekoon '•. Gunowardene, 1 S. C. E. (o) Nathan, Coniuion Law of South 147. Africa, i. pars. 507 — 510; (Transvaal) CONTINUP^D COMMUNITY ON SECOND MARRIAGE. 439 property belonging to marriages which were solemnised previously to June 29th, 1877. In Ceylon it is held that the general principles of the English law of administration and distribution by executors and administrators are in force {b). British Guiana. — The Act of Vcnceeziufi, which means the same as kinderhcicys in South Africa, was abolished by Ordinance No. 12 of 1904 ((•). As regards the consequences of dissolution of marriage before the commencement of this Ordinance, the Eoman-Dutch law rules are followed. Continued Community in Case of a Second Marriage of the Surviving Parent — General Law. — The consequences of marriage on the pro- perty of the spouses were the same in the case of a second or subse- quent marriage as they were in the case of a first marriage {d). The prevailing custom during the Middle x\ges that a surviving parent delayed the division of the estate, especially if the children were minors, rendered it not uncommon that, in case of a second marriage of the surviving spouse, not only the marriage property of the first marriage remained undivided, but even the property of the second marriage was added to the common property of the first marriage. On dissolution of the second marriage it was almost impossible to make out which part belonged to the children of the first marriage and which part was due to the second spouse and the children of the second marriage. The difficulties thus created, led to a number of regulations made by the keiiren of difi^erent towns which pro- vided in what manner division and distribution should take place on the dissolution of the second marriage. As a matter of course, such regulations were, all of them, arbitrary, and in most instances exceedingly complicated (e). The manner in which the property should in such cases be divided, was often much disputed. In the Province of Holland, it was insisted on by some that on the dissolution of the second marriage the common property should be divided into two equal parts, of which the children of the former marriage should take one part. Those who objected to sucli a division as giving to those children an undue preference proj^osed a division into three parts, of which the (6) Pereira, Laws of Ceylon, ii. 29o ; 232 ; Fock. Audr., Bijdragen, ii. 169, see Civ. Proc. Code, s. 712. 170, and n. (1) on p. 170. (c) S. 26. (e) Fock. Andr., Bijdragen, ii. 162— {d) Grotius, Introd., ii. 11, 9; Y. d. 167 ; Ilet Oud Ned. B. E., ii. 185— Keessel, Thes. Sel., Thes. 219 and 187. 440 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. children of the former marriage should take one, the stepmother another, and the father, and together with him the children of the second marriage, the remaining third. If the second wiie had children of a former marriage, the division was to he made into four parts. If the father had married several times, the children of each marriage would take one share each j^er stirpes. Others were content wdth either mode of division, but considered that in the absence of special regulations in particular cases it ought to be left to the discretion of the Judge, according to the circumstances of each case (/). Upon the death of the surviving parent, before a division is made, the community ceased, and did not continue with the step-parent (g). These arbitrary rules were not considered satisfactory. Gradually it came to be understood that it would be better if the legislature, instead of defining rules for the solution of an entangled community, jirevented the occurrence thereof. In consequence, in many Pro- vinces the rules set out above were adopted by legislation so as to render it compulsory for the surviving parent to make an inven- tory and division of the common property on the dissolution of each marriage, with the above-mentioned consequences attached to the non-observance of these rules. At the same time it was enacted that the widower or widow who was left with children of the first marriage could not enter into a second marriage unless proof had been given {beivijs gedaait) of the children's portions in the inheritance of their predeceased l')arent ; that if the second marriage were solemnised without this requirement being complied with, the re-married survivor lost the guardianship over the children of the first marriage, and all advantages left to him or her from the former marriage (/O- Such a prohibition, however, formed no part of the law of the Province of Holland. Meanwhile another disadvantage had arisen, partly on account of these prohibitive measures. The surviving spouse might on his or (/) J. A'oet, Afl Tand., xxiv. 3, 2, Thcs. 273—276. aud authors qiioted ; A. v. Wesel, de (.y) v. Someren, de Jure Noverc, Conn. Bon. Soc. tr. ii. 4, 76 et seq. ; vi. 1, 5; A. v. Wesel, de Fin. vel V. Someren, de Jure Noverc, vi. 2, 3 ; Cout. Comm., tr. ii. 4, 85. IIoll. T'ons.i., Cons. lO.'j, 161 ; ii., Cons. (/() Fock. Andr., Bijdrajren, i. !to, K() ; iiia., Cons. 131, pp. 258 et seq.; 97, 107, 1(')5; ii. 147 d .--v./., 167 and iiib., Cons. 16, Quaest. 3. Compare, n. (1); iiet Oud Ned. JL>. K., ii. however, V. d. Koessel, Thes. Sel., 187. CONTINUED COMMUNITY ON SECOND MARRIAGE. 441 lier re-marriage enter into an ante-nuptial contract with the second spouse, or in some other way benefit the second spouse to such an extent as might be detrimental to the children of the first marriage. In order to prevent this, regulations were made in a number of Provinces against allowing the second spouse to obtain undue benefit at the expense of the children of the first marriage. These regulations resembled the provisions of the Jfx hac edictali of the Eoman law {i). The surviving spouse was forbidden, on his or her re-marriage, to give, either by will or by way of dos or donatio propter niiptias or in any other way, to his second wife or her second husband more than the smallest portion which any of the children of the former marriage would be entitled to in the inheritance of the surviving parent who entered into the second marriage (/c). This rule was practically universal during the existence of the Republic. Previously to its being laid down by statute it was observed by the Courts in their decisions (l). It did not, however, prevent the community from taking place in a second marriage, nor did it exclude it (/»)• Colonies. — Union of South Africa. — The certificate that the kindei'- l)eu-ijs has been properly rendered by the surviving spouse is regarded as essential for a second marriage, and accordingly enforced in the South African colonies (n). The provisions of the lex hac edictali have been abolished (o). Ceylon. — The Pioman-Dutch law rules apply as regards the survivor's duty to have a proper inventory made before he enters (/) Cod. de Sec. Nupt. v. 9, 6. and n. (1) on p. 170. (/i) Fock. Andr., Bijdragen, 167 — (n) Compare pp. 436 — 437 ; De 169 ; Het Oud Ned. B. R., ii. 167, 16S. Bruyn's Opinions of Grotius, pp. 52, (l) Grotius, Introd., ii. 12, 6, and 53 ; Maasdorp, Institutes of Cape Law, ii. 16, 7; Groenewegen, Leg. Abr., 2nd ed. i., 19; Morice, English and Cod., V. 9, 6; Schorer, Notes ad Grot. Eoman- Dutch Law, 2nd ed., pp. 17, Introd., ii. 12, 6; J. Voet, Ad Pand., 18; Nathan, The Common Law of xxiii. 2, 110; J. Cos, Yerhandeling South Africa, i., par. 407, on p. 237; over de "Lex hac Edictali"; v. Wessels, Historj^ of Roman-Dutch Someren, de Jure Noverc, iii. ; Law, p. 467. S. vanLeeuwen, E. H. R., iv. 24, 8; («) Cajie Colony, Act 26 of 1873, J. V. Sande, Dec. Eris., ii. 3, Def. 4 ; par. 2 ; Orange Free State, Law Book, lloll. Cons, ii., Cons. 80; iv., Cons. Chapter XCIL, par. 1; Transvaal, 188; Fock. Andr., Bijdragen, ii. 167 — Proclamation 28 of 1902, par. 127; 170, and authors quoted in n. (2); Natal, Law 22 of 1863, s. 3; Maas- HetOudNed. B. R., ii. 187, 188. dorp, lor. rlt., i. 19, 20; Morice, Joe. (m) Grotius, Introd., ii. 12, 6; V. oY., p. 17; Nathan, loc. n't., i. pars, d. Keessel, Thes. Sel., Thes. 232 ; 409, 410, on pp. 239, 240 ; Wessels, Fock. Andr., Bijdragen, ii. 169, 170, loc. cit., p. 467. 442 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. upon a second marriage {vertigtiwj, venceezing) (p). No statutory rules have been made for their enforcement. The provisions of the lex hac cdictaU are impliedly aboUshed(r/). British Guiana. — As already seen, the Act of Verweezing is abolished (r). VI. Divisioi of the Common Property. General Law. — AVhen the interests of the husband and wife, in consequence of there being no ante-nuptial contract between them, were left to the operation of the law, the division which took place on the termination of the community depended on the nature of that community. If it comprised all property, the whole was divided into two equal parts. One of these was retained by the survivor, and the other was assigned to the heirs of the deceased (s). If there had been the commiuiio quaestuum only, the same division was made of the fructus of the property. The property itself, which belonged to the deceased, passed to the heirs, and the survivor retained that which exclusively belonged to him or her(0. Before the shares could be ascertained the debts, charges, and expenses to which the property was subject had to be deducted (0- It has been already shown what were the charges which had to be borne out of the common property, or which would fall exclusively on the property of one of the parties, and in what manner the one was indemnified if he or she had contributed to those charges more than his or her share. In making the division questions arose respecting the liability of a child to collate or bring into hotchpot sums which might have been advanced to him or her by his or her parents. Those questions will ])e examined hereafter, when the doctrine of collation is under consideration. Colonies. — South Africa. — These rules prevail in the Colonies where the community is the legal consequence of tbe marriage (a). Ceylon. — Similar rules prevail regarding nuirriages solemnised previously to June 2iJth, 1877 (h). British Guiana. — The lloman-J^utch law rules prevail regarding marriages solemnised previously to 1904. {]>) Pereira, Laws of Ceylon, ii. 142. Coinin., tr. ii. 4; v. Soinoren, do Jure ('/) Sec Ordinance 21 of 184-1, s. 1. Novorc, vi., vii., and viii. (r) See p. 439. (a) !N[aasdor]i, Institutes of Cape (s) V. Someren, do Jure Noverc, Law, 2ud ed., i. 94 — 100. xii. 1. (/>) Pereira, Laws of Cej'lon, ii. (/) A. V. Wosol. do Fin. vol Cont. l.'U, V.io. ANTE-NUPTIAL CONTRACTS. 443 SECTION II. The Contractual Eegime. The power of the wife to hmit the marital power of her hushand with regard to the administration of her property has been ah'eady referred to(c). She couki do so : (a) Before her marriage, by ante- nuptial contract ; (b) during her marriage, either (1) by scpuratio hoiiortDii to be obtained from the Court on the ground of her hus- band's mismanagement and the fear that he might squander away the whole of her property, or (2) by having her husband placed under caratela ; (c) after her marriage, by renouncing the com- munity and her rights derived from it. I. Limitation of Marital Power before Marriage. Ante-nuptial Contract. — As soon as marriage ceased to be an actual purchase of the bride and became a formality by which the bridegroom handed a fictitious price, first to the bride's father or guardian, afterwards to the bride herself, as a pledge that he would fulfil the obligations implied in the marriage contract, it became customary to reduce these obligations to writing. As these obligations grew in importance it became necessary to do so, especially if a long time were likely to elapse before proof of them might be needed {d). Two forms of deeds were used for this purpose, viz. : (a) the so- called notitia, which contained all the facts connected with the betrothal and the marriage ; and (b) the carta dotis, which con- tained a description of the dos which was given or promised at the marriage (e). Historical Development. — As the presence of the momher at the marriage ceased to be essential, and the marriage contract became a contract between the bride and the bridegroom exclusively, the notitia lost its importance, while that of the carta dotis became enhanced. It constituted the w'idow's title to part of her husband's property. The character of the marriage property changed. In a number of Provinces of the Low Countries the common ownership of the (c) Cf. Y>. 291, ante; Schorer, Notes i/(^e(/?-it»i against contracts entered into ad Grot. Introd., i. 5, 19 ; J. Voet, Ad by her. Eegarding the right to restitu- Pand., xxiii. 2, 63. If the marital tion of a widow who had not yet power with regard to the wife's property reached the age of majority, cf . J. Voet, were restricted so that the wife could Ad Pand., iv. 4, 9. act for herself, she could, whilst a {d) Fock. Andr., Bijdragen, ii. 129. minor, obtain relief by restitutio in, (e) Ibid., ii. 130. 444 EFFECT OF MARRIAGE OX PROPERTY— ROMAN -DUTCH LAW. (Jos gradually produced the system of community of property between husband and wife. The character of the carta dotis also changed. Wherever community of property became the rule, the bride and bridegroom were left free, on entering upon marriage, to exclude it or change its terms and to make what conditions they liked to regulate their marriage. Under these circumstances there was no longer any necessity to continue the double contract, and the marriage contract ceased to retain its double character, viz. : (a) a contract that the parties would marry each other, and (b) a contract to regulate certain financial relations between husband and wife. It became one single contract, providing that the parties should enter into marriage upon certain conditions of a pecuniary nature. In consequence of this, a great number of marriages were not preceded by a contract at all, and if a contract were made it was done in order to exclude the community or to change its terms (/). The forms in which these contracts were made, varied in different towns and Provinces. They developed from the mere verbal promise made in the presence of witnesses {Jn/Ii.rlieiJen) to the marriage articles of the present day, not everywhere, it is true, in the same manner or to the same extent, yet in a progressive and clearly defined series of stages. In consequence of these conditions being made at the marriage ceremony in the presence of dedingsludcn they were put into writing. At first, no time limit was fixed, but afterwards, in some places, it was provided that they should be written down within a year after the marriage, in order that the writing might in future times serve as proof of the conditions agreed upon. Then it became essential that they should be made in writing. At first the writing consisted of acts privately executed by the parties ; afterwards the contract was contained in pul)lic documents, signed before a notary public and witnesses, or before the sherifi's of the town. A further stage of their development was reached when it was provided that these contracts, in order to have force in law, bad to 1)0 in writing, and to be signed or sealed (registration j'ro- hationis cai(sa). Finally, it became compulsory that those acts sliould be signed or sealed in the presence of some public official, and lie published (/) Fock. Andr., Bijdragen. ii. loO, lol. ANTE-NUPTIAL CONTRACTS — REQUIREMENTS. 445 and registered (registration solemnitatis causa) (;/). At this point, the ante-nuptial contract had reached its full development. Definition. — An ante-nuptial contract, as described by van der Keescel (li), was an agreement entered into previously to the marriage between the husband and the wife, or between them and some other person or persons interested, with regard to the laws and conditions which should prevail during the marriage. I. Requirements. — Form. — In order to be valid between the parties themselves, the marriage articles might be made orally or in writing. If in writing, they could be either privately or notarially executed (i), provided that the laws regarding stamp duties were duly observed (k). They might be entered into by implication, e.g., if, after a divorce, the divorced parties married again and did not revoke their former marriage articles, these were considered to have been revived (/). In order to be valid against third parties, the marriage articles had to be made in writing, in some solemn form, either before a notary public and witnesses or before the sherift's of the town, or in the presence of the relations of both parties, or in the presence of a proper number of witnesses {m). In some of the towns of Holland, and especially during the later period of the Republic, the contract had to be made not only in writing, but also before some public official (;()• It was not necessary tbat it should be contained in one document. It might refer to some other document which was already in existence, or had to come into existence, on some of the subjects contained in them, provided that such document had been properly described and corresponded with the description of it in the ante- nuptial contract (o). («/) Fock.Andr.,Bijdiagen,ii. 129— {k) Yan Leeuwen, E. H. R., iv. 24, 140; Het Oud Ned. B. E., ii. 178, l,innotis; V. d. Keessel, Thes. Sel., 179; Wessels, History, 467— 4(31. Thes. 229. (/i) Thes. Sel., Thes. 228. ' (/) J. Yoet, Ad Paiid., xxiii., 4, 5. (/) Grotius, Introd., ii. 12, 4; {m) J. Cos, Eechtsgel. Verh., ii. 5 ; Schoi'er, Notes ad Grot. lutrod., loc, v. d. Keessel, loc. cit. cit. ; Neostadius, de Pactis Anteu., (») S. van Leeuwen, Censura For., Obs, 18,19; Holl. Cons., iii. b., Cons. i. 1, 12, 9; Eegtsgel. Obs., li., Obs. 182 (Grotius); iv. Cons. 35 ; vi. 1st 35; J. Voet, Ad Pand., xxiii. 4, 2 ; v. part, Cons. 45 and 90; J. Voet, Ad d. Linden, Koopmanshdbk. , i. 3, 3, on Pand., xxiii. 4, 2 — 4; v. d. Keessel, p. 17. Thes. Sel., Thes. 229. (o) Holl. Cons., ii., Cons. 303, on 446 EFFECT OF MAREIAGE ON PROPERTY ROMAN-DUTCH LAW. An ante-nuptial contract thus publicly drawn was preferred to a. private agreement and superseded it, unless it were a private agree- ment which exclusively contained provisions to be carried out between the parties themselves (p). Registration was not compulsory. It had been made compulsory by a Placard of the Province of Holland, dated July 30th, 1624, but the provisions of that Placard were never carried out {q). Time. — It Mas essential to the validity of an ante-nuptial contract that it should be made previously to the celebration of the marriage. After the marriage had been solemnised, it was no longer in the power of the parties to revoke or alter the contract by act inter vivos (r). Parties. — The j)arties to the ante-nuptial contract were the persons who contracted the marriage. The validity of the contract depended on the same conditions as those which were required for a valid marriage. If the consent of the parents were required for the marriage, the same consent was necessary for the ante-nuptial contract, because such consent did not only refer to the marriage itself, but to the marriage as it was about to be celebrated under certain conditions. Third parties (parents, relatives, friends), who w^ere desirous to bestow some donation on the persons who were about to be married, might become parties to the contract (s). It was, however, essential that there should be an initial contract between the parties themselves who were to be married. Third parties could not by themselves enter into an ante-nuptial contract on liehalf of the spouses, without their knowledge and co-operation. Such a contract would not be binding upon the parties to the marriage (a). In case a marriage had been entered into by a person of age with a minor, but without the consent of the minor's parents, the person ]). 568 ; J. Yoot, Ad Pand., xxiii. Berg, Ned. Advysboek, i., Cone. 4, 9. 310, on p. 707 ; v. d. Keessel, Thes. (p) J. Voet, Ad Pand., xxiii. 4, 6—8. Sel., Thes. 2U1 ; Fock. Andr., Bijdra- (7) llegtsgel. Obs., i., Obs., 42 ; v. gen, ii. 140, 141 ; J. Voet, Ad Pand., d. Linden, Koopnuuishdbk., i. 3, 3, on xxiii. p. 17. (s) Van der Keessel, Thes. Sel., (r) Grotius, Introd., ii. 12, o ; Thes. 228; Fock. Andr., Bijdragen, Schorer, Notes ad Grot. Introd., loc. ii. 142. r?<. ; Groenewegen, TiCg. Abi'., Cod., iv. (a) Holl. Cons, ii., Cons. 164 and 29. 2, and authors quoted; J. v. d. 165. WHAT STIPULATIONS ALLOWED. 447 who was of age could not derive any pecuniary benefit from such marriage. If, in such a case, a marriage contract had been made, any covenant contained in it for the benefit of the party who was of age was considered null and void. The minor, on the other hand, was allowed to take advantage of any covenant for his or her benefit entered into by the party who was of age (h). 11. Contents of Ante-nuptial Contracts. — As an ante-nuptial contract was made between the parties who contracted the marriage^ they could thereb}^ alter any of the consequences attaching to the marriage which were not of the essence of the contract. During marriage none of its consequences could be altered unless by decree of the Court. The object of an ante-nuptial contract was to regulate the relationship between husband and wife during their marriage, not only with regard to their property, but also in other respects (cfh, the religious education of the children), partly in addition to, partly in the place of provisions made by law. What Stipulations Allowed. — Generally speaking, an ante-nuptial contract might contain any provisions which the parties thought fit to make, except such as were contrary to the character of the marriage, or to the dignity of the husband, or to natural reason, morality, and honesty, or militated against the law of the country (c). The following are examples of stipulations contrary to the character of the marriage, e.g., that the husband should be in the guardianship of his wife — " though, without covenant, such is, only too often, seen and experienced " (rf) — or that the husband — if a minor — should not trade during his minority without the consent of his wife or should not appear in Court on behalf of his wife, but that the wife should institute legal proceedings herself and in her own name. Provisions were void, as contrary to the dignity of the husband, if they contained, e.g., covenants which exacted guarantees from (6) Eeuwig Edict, October 4th, Thes. 228 ; v. d. Linden, Koopmansh., 1540, s. 6 ; Grrotius, Introd., ii. 12, 7 ; i. 3, 4, on p. 17. Fock. Andr., Bijdragen, i. 147, 157, {d) Lybreghts, Eeden. Vertoog, i. lo8. * pp. 81, 82; Gail, ii. Obs. 95, adds: {(■) HolL Cons., iiib., Cons. 203, " Zonderling willen zy heerschen. No. 11 (Grotius) ; J. Voet, Ad. Paud., wanneer zy wel gedoteert zyn." xxiii. 4, 19; v. d. Keessel, Thes. Sel., 448 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. the husband for the proper restoration of the j^roperty which the wife brought to the marriage, or which, if a suretyship had been entered into, stated that the sureties would not be bound (e). Provisions were deemed to be illegal and to militate against the law of the country, if they permitted either party to do that which the law prohibited, or prohibited that which the law permitted them to do. Such were covenants, e.r/., that the husband and wife should be able to make donations to each other, or that the}" could give each other a life estate, if such were forbidden by the law of their domicil. So too were covenants against the liberty of a person to make a will, e.g., that the married parties were restrained from making testamentary dispositions in favour of each other (/). The parties were entitled, however, whilst adopting the com- munity of goods or of profit and loss, to stipulate that such community should not be regulated by the law of the matrimonial domicil, but according to the laws and customs of the country where the wife was domiciled previously to her marriage or of some country foreign to the domicil of either party (g). Exclusion of Community (ii). — In regulating the relationship regarding their property the future husband and wife might exclude connimnio houornin, either with or or without the exclusion of the coDDiiaiiio qiuestiuun. This was one of the most usual provisions of an ante-nuptial contract. The exclusion of the former did not eo ipso contain the exclusion of the latter, as the community was so inherent a j)art of the common law that any- thing which was not specially stipulated as excluded from that community remained under it (0- If the community of goods were not entirely excluded the ante-nuptial contract might restrict its effect in respect of the property which it would comjirise. It might be confined to movable property, or to immovable property situate in a certain (e) Van Leeuwen, E. II. E., iv. (//) J. Yoet, Ad Paud. xxiii., -1, 27, 24, 4. and autliors quoted. (/} J. Voet, Ad ruiid., xxiii. 4, {h) Cf. p. -'396. 20; Wassenaer, Pract. Judic, xi. 7;5 ; (/) Grutius, Introd., ii. 12, 11; Eodeuburg, De Jure Couj., iii. 1, 4, Uoll. Cous., vi., 2nd part, Cous. 173, 5 — 7; A. V. Wesel, Ad. Novell. Const. on p. 698, and Cons. 174; Lybreghts, Ultraject, tr. ii. 12, art. vii. u. Eeden. Vertoog, i. 86, 87. EXCLUSION OF COMxMUNITY. 449 country. It might be agreed that the community would begin to take effect only at a certain time, or on the fulfilment of a certain condition, or that its adoption or rejection would depend on a certain contingency, e.g., the birth of a child. So marriage articles might be entered into, in order to keep certain property out of the community which belonged to either the husband or the wife at the time when their marriage was entered into (/t). This might be done : (1) by attaching to the ante-nuptial contract an inventory setting out the goods which would remain the property of either of the spouses, or such goods as either of them would bring into the community (/). In case the parties had agreed that there should be community of profit and loss only between them, such an inventory was required to prove what goods were the exclusive property of either of the spouses before the marriage and had not been acquired since {m). (2) Or it might be done by stating in the marriage articles that all such goods would be included in, or excluded from, the community as might be acquired by either the husband or the wife during their marriage by way of inheritance or as a legacy, or a donation, or otherwise {e.g., all such goods as the husband might at any time possess over and above 600 florins) (u). If such goods were not specifically excluded but only those which the husband and wife possessed previously to the marriage, all goods obtained by them during their marriage became part of the com- munity. Thus fruits, not specifically excluded, if gathered or obtained during marriage became common (o). This was of particular importance if both the community of goods and that of profit and loss were excluded, and the wife had to prove and identify her own property {p). Notwithstanding exclusion of community of property the wife would be liable to bear half the expense of the common household. This duty might, however, also be suspended, and it might be stipulated that the wife should participate in the profits only, and not share in the losses, although such provision would only be (A;) Lybreghts, Eeden. Yertoog, i. 83 quoted; Fock. Audr., Bijdragen, ii. et seq. 141, 142 ; Het Oud Ned. B. E., ii. 180. {I) Jjyhreghts, loc. cit. ; Holl. Cons. (») Holl. Cons, vi., 1st part, Cons, vi., 2nd part, Cons. 119. 10 ; Lybreglits, Eeden. Yertoog, i. 86. (m) Grotius, lutrod., ii. 12, 9; A. (c) Grotius, Introd., ii. 22, 12; Matthaeus, Paroem., ii. 57; J. Voet, Lybreghts, Eeden. Yertoog, Joe. cit. Ad Pand., xxiii. 4, 26 — 28, and authors {2j) Holl. Cons, iv., Cons. 412. M.L. 29 450 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. effective as between the spouses and could never be to the disad- vantage of the creditors. The creditors would always have a claim against the wife for half the amount of the household debts, and she would have to recover such half from the heirs of her predeceased husband {q). In regulating the relationship of husband and wife during their marriage the most important provisions were those which served to limit the marital power in order to secure the wife's property — if community of goods were excluded — against an abuse thereof by her husband, and to relieve her to some extent from liability for debts incurred by her husband. Where Community Excluded, "Wife could Stipulate for Administration of her Property. — It has already been stated that, if community of property were excluded, the wife could not exact guarantees from her husband for the proper restoration of the property' possessed by her at the time when the marriage was entered into. She might, however, obtain certain guarantees against an abuse of the marital power. Notwithstanding the exclusion of community of property, the husband would, in consequence of his marital po^Yer, have the administration of his wife's property (r) ; but the wife might stipulate that she would have the free administration of her own property without her husband having power to incumber it or to alienate it without her consent (s). The effect of such a covenant would be, in case the ante-nuptial contract had not been registered, that any alienation of the property on the part of the husband, without his wife's consent, rendered the husband liable in damages to his wife, and this right was secured by a tacit legal hypothec on her husband's separate property («). (7) This point was mucli disputed. (s) Grotius, Introd., [i. 5, 24 ; Grotius, Introd., i. 5, 24 ; ii. 12, Schorer, Notes ad Grot. Introd., i. 5, 9, and annotations by Groenewegeu 23 ; Neostadius, De Pact. Anten., ad ii. 12, 9; Schorer, Notes ad Grot. Obs. 21, and in notis ; Groenewegen, Introd., i., 5, 24 ; J. Cos, Eechtsge- Leg. Abr., Inst., ii. 8, pr. 6 ; Cod. leerde Verhand., iii. IG ; Neostadius, v. 12, 30, 6 ; Van Leeuwen, R. H. E., De Pact. Anten., Observ. ix., notro in iv. 24, 4; Coreu, Cons. 7 ; J. Voet, not., p. 35, and Observ. xxi., in notis. Ad Pand., xxiii. 4, 21. p. 63 ; Van Lo9uwen, R. II. E., iv. (o) Van Leeuwen, E. II. E., iv. 24, 24, 3 ; Lybreghts, Eeden. Vertoog, i. 4 ; Schorer, Notes ad Grot. Introd., p. 94 ; V. d. Keessel, Thes. Sel., Thes. i. 5, 24, who considers, however, this 249 ; J. Voet, Ad. Pand., xxiii. 4, 48. manner of limiting the marital power (r) Cf. p. 291. as contrary to law. WIFE S ADMINISTRATION OF HER OWN PROPERTY. 451 If the ante-nuptial contract had been registered and thereby l^ublicit}^ had been given to the covenant, the husband was not only hable in damages to his wife, but he was also unable to give a proper title to the purchaser or mortgagee (h). Besides having a tacit legal hypothec on her husband's property, the wife had then the right to reclaim the property from the purchaser with a re'i vindicatio, and the mortgage granted by her husband would be invalid (6). The rei vindicatio would, however, only be available if the alienation had taken place of immovable property or of share certificates which were standing in the name of the wife. Eegarding movable property and bearer certificates the simple transfer after payment of the price would constitute a sufficient title for the purchaser, and the wife would only have a claim for damages against her husband (c). In such cases the wife could, notwithstanding her general incapacity and the absence of a persona standi in judicio, appear in Court herself without the assistance of her husband {d). Prescription would not run against the wife's right of action during marriage, as she was in this respect in the same position as a minor {e). It was of course, presumed that in disposing of his wife's pro- perty against the provisions of the covenant the husband acted fraudulently. In the absence of fraud on his part, the wife was able to prevent her husband from interfering with her property (/). If the wife, having reserved to herself the administration of her own property, knowingly or negligently permitted her husband to receive her moneys, she could not afterwards avail herself of the above-mentioned privilege to undo the acts of her husband as to her property, and she would be in the same position as if by a contrary stipulation she had renounced the privilege ((/). A married woman who had reserved the free administration of her own property could legally contract with her husband and others as far as such administration was concerned {h). {It) Note of Decker on Van Leeuwen, in fin. ; Eegtsgel. Obs., iv. Obs. 7; E. H. E., iv. 24, 4; Van Leeuwen, v. d. Keessel, Thes. SeL, Thes. 95; Cens. For., i. 1, 12, 5, G; Coren, J. v. d. Linden, Judic. Practyk, i. Consilia, Cons. 7, on i:)p. 18—20; 8,3. J. Voet, Ad Pand., xxiii. 4, 21 ; xliv. 3, (e) J. A^oet, Ad Pand., xxiii. 5, 8. 11, in fin. ' (/) Grotius, Introd., i. 5, 24. ((•) V. d. Keessel, Thes. SeL, Thes. 97, (y) S. v. Leeuwen, E. H. E., iv. 13, 98. 14. id) J. Voet, Ad Pand., ii. 4, 34, (A) v. d. Eerg, Nederl. Advysboek, 29—2 452 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. Wife could Stipulate for Return of her Property after Husband's Administration. — Without limiting the marital power in this respect or excluding it in any way, the parties to an ante-nuptial contract might mutually agree either: (1) that the community of goods and of profit and loss should he excluded, and that the husband should retain the administration of his wife's property, but that either he or his heirs should, after the dissolution of the marriage, return to the wife or to her heirs her property intact, and that the wife should not be liable for any debts incurred by the husband during the marriage (?), or for the wife's election between this and a com- munity for profit and loss ; or (2) that the community of goods would be excluded and that, at the dissolution of the marriage, the wife or her heirs would have the right of election, either to share the profit and loss made during the marriage, or to have her property restored to her as she possessed it at the time when the marriage was entered into, and not be liable for any of the debts incurred by her husband during their marriage. In case such a covenant had been inserted in an ante-nuptial contract_ the wife could exercise her choice, even during the marriage, against her husband's creditors, if he became insolvent (A-). If the wife had reserved to herself such right of election without expressly stipulating such privilege for and on behalf of her children or " heirs," it was doubtful whether the children or " heirs" could elect (/). Remedy of Wife against Husband alienating her Property in Cases (1) and (2) : — In the Provinces of Holland and Brabant the husband had the power, if he had retained the administration, to alienate iii. Cons. 177, on p. 477; Schorer, xxiii. 4,53; Schorer, Notes ad Grot. Notes ad Grot. Introil., i. o, 24; Iiitrod., i. 5, 24; Holl. Cons, iii b., J. Voet, Ad Pand., xxiv. 1, 18. Cons. 303 (Grotius) ; Fock. Andr., (/) J. Voet, Ad Pand., xxiii. 4, 52 ; Anuot. ad Grot. Introd., ii. 12, 10 ; V. d. Keessel, Thes. Sel., Thes. 247, De Haas, Nieuwe Holl. Cons., Cons. in which he maintains that such pro- xxxviii. ; v. d. Berg, Ned. Advj-sboek, vision excluded per se every com- ii. Cons. xc. ; v. d. Keessel, Thes. Sel., munity of property and of profit and Thes. 250. loss. Cf. Ordinance, October 4th, (/) Holl. Cons, ii., Cons. 9G and 240 ; 1540, s. 6, in fin. Holl. Cons, iii b. Cons. 303, on p. 543 (A:) Grotius, Introd., ii. 12, 10; (Grotius); Lybreghts, Redon. Vertoog, Neostadius, De Pact. Anten., Obs. 9 ; i. 91, 92 ; J. Voet, Ad Pand., xxiii. 4, Groenewegen, Notes ad Grot. Introd., 51 ; Bynkershoek, Quivst. Jur. Priv. ii. 12, 17 ; Groenewegen, Leg. Abr., ii. 1. Cod. V. 12, 3: J. Voet, Ad Pand., HUSBAND S POWERS OF ALIENATINCI WIFE'S PROPERTY. 453 his Avife's property during the marriage and to give a proper title as far as third parties were concerned. The wife would not be able to reclaim any property so disposed of, but she would have a claim for damages against her husband and — in both cases (1) and (2) above mentioned, if she exercised her right of election — would be entitled to take out of his property so much as was necessary to restore her property. In doing this, she had a preferential right over all other creditors (in). This preferential right which the wife had in case of either stipulation (1) or (2) constituted a tacit legal hypothec in favour of the wife on her husband's property for the restitution of her own property, and this mortgage ranked before any conventional mort- gage which the creditors might have obtained against the husband either previously to or during the marriage (»). A married woman who had thus secured a priority over her husband's creditors for the restitution of her own property, was not prevented from becoming a surety for her husband and from thus personally contracting debts stante matriinonio (o). As an illustration Voet adds that it became a rule with the States of Holland, not to admit anyone as a collector of revenues, or as a surety for the collection of the public revenues, w^hose wife had secured her own property by such a provision, unless she renounced the benefit of it in favour of the Fiscus (j)). The husband, on the other hand, had against his wife a claim for restitution of all necessary expenses incurred by him in the adminis- tration, or on behalf, of his wife's property (q). The right of the husband to alienate did not include the right to mortgage his wife's, property (r). Where Community Excluded and Marital Power Unlimited. — In case both the community of property and the community of profit and loss had been excluded, but the marital power had not {m) Ordiuance, October 4th, 1540, Leeuwen, E. H. E., iv. 13, 14; Cens. art. 6 ; Holl. Cous. v., Cons. 18 ; For., i. 1, 12, 3 ; Holl. Cons., ii. Lybreghts, Eeden. Vertoog, i. 93 ; J. Cons. 79 ; iv. Cons. 266. Voet, Ad Pand., xxiii. 5, 7. (o) J. Voet, Ad Pand., xxiii. 4, 56. (n) Groenewegen, Leg. Abr., Cod. {p) Placaat, 16 Maart 1679 ; Holl. V. 12—30, 2—5 ; v. d. Berg, Ned. Placaatboek, iii. 799. Advysboek, ii. Cons. 90 ; Lybreghts, (q) Schorer, Notes ad Grot. Introd., Eeden. Vertoog, i. 93 ; J. Voet, ii. 12, 15 ; ii. 10, 9. Ad Pand., xxiii. 4, 53, 54 ; v. d. (r) v. d. Berg, Ned. Advysboek, ii. Keessel, Thes. Sel., Thes. 263 ; Van Cons. 90. 454 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. been in an}' way limited and no other stipulation had been made, the wife had, nevertheless, a claim for damages against her husband if he alienated her property without her consent, but such claim was postponed to those of all other creditors and did not carry with it a tacit legal hypothec over her husband's property (s). Donations. — Although donations of any Idnd bestowed by the spouses on each other during marriage were absolutely void, they might be stipulated for previously to the marriage, or the ante- nuptial contract might secure that certain donations received during marriage should be enjoyed by the husband and wife jointly or by either of them. These comprised the following : — 1. Morgengave, a gift by the husband to his wife. The original idea of viorgcngavc, viz., a gift from the husband to his wife on the morning after their marriage in proof of such marriage (pretium virginitatis), continued to be customary and recognised in the seventeenth and the eighteenth centuries (t). Such a gift — if promised or granted by ante-nuptial contract — became the absolute property of the wife and could be disposed of by her at will. At her death it went to her heirs (a). 2. Doiiarien. — Next to this vwrrjengai-e another form of gift on the part of the husband grew up, also denoted by the name of morgengave, but which was of an entirely different character. It became a custom previously to the marriage for the husband to promise to his wife — or for her to covenant with him — in the ante-nuptial contract for the payment of a certain sum to the wife out of her husband's estate, in case she should survive him and there were no children of the marriage living (^). This gift also received the name of morgengave, or — to dis- tinguish it from its original — doarium or douarie. Its meaning gradually extended and its character changed. It (s) Eeuwig Edict, October 4th, lo40, 250; Fock. Andr., Bijdrageu, ii. l-4o, art. 6; Grotius, Introd., ii. 12, 15, 17 ; and authors quoted in note i ; HoU. J. Voet, Ad Pand., xxiv. .3, 21. Cons., i., Cons. 149; ii. Cons. 207; (<) Fock. Andr., Bijdiagen, ii. H.'), TJtr. Cons., i. Cons. 27, No. 5 ; Tan 144; Ilet Oud Ned. B. II., ii. 107, Leouvven, E. H. E., iv. 24, 13 ; contra, et seq. ; J. W. Wessels, History, p. 463. y. d. Kecsscl, Thes. Sel., Thes. 248. Cf. p. 392. (A) Fock. Audr.,r.ijdragen, ii. 145 jo. (a) V. d. Borg, Ned. Advysboek, i. p. 89. Cons. 200 ; ii. Cons. 151 ; iii. Cons. SETTLEMENTS. 455 no longer remained a gift from the husband to his wife. It became common to provide mutuall}^ in the ante-nuptial contract that there should be a gift to the surviving spouse independently of the fact whether there were any children living of the marriage or not (c). These " douarien " {in solatium viduitatis promissa) were in the nature of gifts which took effect at the dissolution of the marriage b}' the death of either of the spouses. They could not be demanded, if the marriage were dissolved by divorce or a separation were pronounced {d). Voet adds, as an illustration, that if a particular house should be assigned as the doarium, and during the lifetime of either party it was burnt down by accident, and another house rebuilt, it seemed that the latter could not be claimed by the party entitled to the doarium without repaying the expense incurred in rebuilding it (e). Notwithstanding that some specific property might thus have been assigned as the doarium, the survivor did not acquire a lien or legal mortgage on the propertj^ of the deceased, as a security for it, but could only demand it after all the creditors of the estate left by the deceased had first been satisfied (/). From the favour shown to this provision, it was decided that when the doarium had consisted of a certain annual sum, and the husband by his will had given to his wife an annuity of a greater amount, the latter legacy was held not to be in satisfaction of the former, and that she might claim both(_r/). Several attempts were made to check the abuse of these douarien as a means of constituting a fund for the husband to fall back upon in fraudem crcditorum. The best known of these attempts was the prohibition of Charles V. in his Eeuwig Edict of October 4th, 1540 (/O- 3. Settlements. — The husband could promise his wife certain gifts (lucrum) to be paid to her on his death (i), but these could not be paid to her unless all creditors of the estate had first been satisfied, (c) Eegtsgel. Obs., iii. Obs. 38 ; J. Yoet, Ad Pand., xxiv. 2, 25 ; v. d. Bynkersboek, Qurest. Jur. Priv., ii. 7. Keessel, Tbes. Sel., Tbes. 259. ('0 J. Yoet, Ad Pand., xxiv. 3, 23. (,(/) J. Voet, Ad Pand., xxiv. 3, 26 ; (e) Ibid., xxiv. 3, 24. Eodenburg, de Jure Conj. Tract., ii. (/) Grotius, Introd., ii. 12, 17 ; 4, 6, 7. Schorer, Notes ad Grot. Introd., lor. (//) Art. 6. Cf. Wessels, History, cit. ; Eegtsgel. Obs., iii. Obs. 38 ; 464. Neostadius, De Pact. Anten., Obs. 10; (i) Fock. Andr., Bijdragen, ii. 144, 456 EFFECT OF MARRIAGE ON PROPERTY— ROMAN-DUTCH LAW. independently of the fact whether the husband and wife ^Yere married in any community or not (J). Between the spouses such ante-nuptial contract was valid, and could not be altered or revoked during marriage ; otherwise such revocation would amount to a donation between the spouses, and donations between spouses were void (A). 4. Gifts by Thh*d Parties. — The ante-nuptial contract frequently contained donations to either of the spouses from third persons, who were parties to the contract, whether relatives or strangers, e.g., the trousseau promised by the parents or other relatives to the bride (/). Such a donation might consist in the promise of a gift to take place at the death of the promisor (;»)• As such promises were part of the contract, they could not be revoked (»). To these promises a condition might be attached to the effect that after the dissolution of the marriage the gift should revert to the donor or to some third person or to the side whence it came. It was much disputed whether such a condition was revocable by will of the donor or not (o). Stipulations regarding Succession to Third Parties. — Of the same nature to these were stipulations whereby, in favour of the marriage, the succession to the inheritance of a third contracting party was regulated, e.r/., that either of the spouses would be the sole heir or a legatee of the third contracting party, or, if that party were one of the parents of either the bridegroom or the bride, that the husband and wife would succeed such parent together with the other children, or that the future spouses declared themselves content with the donation given by the parents, and renounced their rights to the future inheritance of those i^arents in favour of the other children, or that the parents of the bridegroom renounced 145, and authors quoted on p. Mo, (/) Fock. Amir., liijdragcu, ii. n. 3. 142. (J) Eeuwig Edict, October 4th, {m) v. d. Keessol, Thos. Sel., Thes. 1540, art. 6 ; Eechtsgel. Obs., iii. 245, 2'\ Obs. ;38; Grotius, Introd., ii., 12, 17 ; ('0 v. d. Ivcessel, Thes. Sel., he. Schorer, Notes ad Grot. Introd., loc. cit. ; HoU. Cons, iii a.. Cons. 27. cit.; V. d. Keessol, Thes. Sel., Thes. (o) Corcu, Consilia, ix. 4 1 ; J. Yoet, -^^2. Ad Pand., xxiii. 4, Gl ; v. d. Keessel, (k) Necstadius, De Pact. Anten., Thes. Sel., Thes. 245, 3". Obs., iv. Cf. p. 454. ANTE-NUPTIAL CONTRACT — SUCCESSION TO SPOUSES. 457 their title to tlie jwrtio legitiina in their son's inheritance in favour of their future daughter-in-law (p). Stipulations to this effect were irrevocable except by mutual consent (;)). Stipulations regarding Succession to Spouses. — The ante-nuptial contract might also serve to regulate the rights of succession to the property belonging to either or to both of the spouses. Besides the intestate and testamentary succession, lioman-Dutch law recognised — contrary to the maxims of Eoman law, which did not allow jMcta successionis (q) — the regulation of the succession by ante-nuptial contract, such right being constituted by custom (r) and acknow- ledged by statute (s). Provisions of this nature took the place of a will or testament, and the inheritance — though devolving according to the provisions of the ante-nuptial contract — could not be said to have devolved by agreement. Hence it was impossible to enforce the provisions of the ante-nuptial contract by an action founded on such contract, and these provisions were at any time revocable {t), though only by mutual consent (a). The power of disposition might be regulated in the same manner as in the case of a testamentary disposition. I. Dispositions as between Husband and Wife. — (a) It might be provided that the whole inheritance should devolve upon the survivor, or that the survivor should enjoy a life estate in the property left by the predeceased (/>), provided that such disposition did not militate against the laws regulating the ijortio legitima of the children (c). In reality the life estate took the place of the (p) J. Voet, Ad Pand., xxiii. 4, 57* in fin. j'«^rt. ; V. d. Keessel, Thes. Sel., Thes. (i!) Xeostadius, De Pact. Anten., 246. Obs. ii. in notis ; Van Leeuwen, {(j) Dig. xlv. 1, 61 ; Cod. ii. 3, 15; E. H. E., iv. 24, 11. viii. 38, 4. (a) J. Voet, Ad Pand., xxiii. 4, 62 ; (r) Eegtsgel. Obs., ii. Obs. 36; v. v. d. Keessel, Thes. Sel., Thes. 235. d. Keessel, Thes. Sel., Thes. 235 ; See, however, v. d. Linden, Koop- S. van Leeuwen, Costumen van mansh., i., 3, 5, on p. 20. Eynland, art. 92, p. 35S. In the (/>) Fock. Andr., Bijdragen, ii. 141, Provinces of Friesland and Utrecht 142; Het Oud Ned. B. E., ii. 180; the Eoman law maxim was followed. J. Cos, Eechtsgeleerde Verhand., iii. Cf. Groenewegen, Leg. Abr., Cod. ii. 14 ; J. Voet, Ad Pand., xxiii. 4, 57'''. 3, 15 ; J. Voet, Ad Pand., xxiii. 4, 57-''. (r) v. d. Keessel, Thes. Sel., Thes. (s) Polit. Ord., April 1st, 1580, s. 29 236; J. Voet, Ad Pand., xxiii. 2, 129. 458 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. ancient (^^s, which had the character of a provision for the widow, and such provision acquired increased importance when' the grant of a life estate to the widow in any other way except by ante-nuptial contract was forbidden as offending against the above-mentioned laws which regulated the legitimate portions of the children (J). (b) Husband and wife could mutually bequeath a child's portion to the survivor of them(f). If children were born of the marriage, this disjjosition had to be interj^reted strictly, but if there were no children more freedom was allowed. So, if a child's portion was granted on condition that children were born, the legacy lapsed if no children were born. If, on the other hand, the legacy was granted without any condition attached to it, then, if no children were born, it was a moot point whether the entire inheritance fell to the wife or only half of it(/). (c) Husband and wife could bequeath the inheritance belonging to either of them to third persons ((/), who might be indicated in the ante-nuptial contract either by name or without being named. In the former case, if the beneficiaries were named, they might either be strangers to the contract or parties to it. If they were not, at the same time, parties to the contract, the dispositions acted as testamentary bequests, and could be revoked at any time by the husband and wife by mutual consent. If they were parties to the contract and the person who made certain gifts to the husband and wife stipulated at the same time in the ante-nuptial contract that in case of death of husband and wife these gifts should return to him, such covenant did not constitute a testamentary bequest, but a contract which was binding upon husband and wife and irrevocable by a later testamentary disposition {It). In the latter case the bequest became one to persons uncertain. It might be provided by ante-nuptial contract that, on the dis- solution of marriage by death of either the husband or the wife, their property should be inherited by certain persons indicated b}^ a class only, or that the goods should return to the side whence they {(1) Fock. Andr., Het Oiid Ned. Leeuwen, Cens. For., i. 1, 12, 15; B. E., ii. 180, ISl. J. Voot, Ad Pand., xxiii. 2, 9. ('-) V. d. Kccsscl, Thes. Sel., Thes. (g) J. Voot, Ad Pand., xxiii. 4, 57*. 2.'J7. (//) i?>/(l, xxiii. 4, 61 ; v. d. Keessel, {/) Ibid., 2:38; amtra, S. van Thes. Sel., Thes. 239. ANTE-NUPTIAL CONTRACT — SUCCESSION TO CHILDREN. 459 came, and should be divided either among the relations of the deceased husband and wife according to the rules of intestate succession or among such persons as indicated by will. The wife might be instituted heir in a will made j)reviously to the marriage or subsequently to the ante-nuptial contract, as neither marriage nor an ante-nuptial contract revoked a will (i). In these cases the provisions of the ante-nuptial contract were revocable by either of the spouses, unless the dispositions w'ere confirmed by mutual promise (A:). If so confirmed, revocation could only be made by a mutual will (A). II. Dispositions regarding Children. — It was possible for husband and wife by ante-nuptial contract, not only to regulate the succession to their own inheritance, but to do so equally on behalf of their children (/). Although Eoman-Dutch law did not contain the suhstitjitio impillaris of the Koman law, it gave the future spouses the power to regulate their children's succession by ante-nuptial contract or by will under the following circumstances. Choice of Intestate Succession. — (a) In order to exclude any arbitrary dealing with the marriage property by the husband, parties could by ante-nuptial contract stipulate that the property left by their children — if these died before they had reached the age when they themselves could make a will, or after they had reached such age, but without having made one and without leaving lawful issue them surviving — should devolve, as regards succession to the inheritance, according to the laws regarding intestate succession prevailing in the country of the matrimonial domicil, or of the bride's domicil, or in some other country, e.g., the Aasdom law of succession, or the Schependom law, or partly the one and partly the other, provided only that the law of the country of the matrimonial domicil did not prohibit such provisions {m). In such cases the property passed ah intestato from the children according to the law of succession elected in the marriage contract (n). (t) Holl. Cons., ii. Cons. 318 ; and authors quoted. J. Voet, Ad Pand., xxiii. 4, 65. {m) Grotius, Introd., ii. 29, 3; v. (A-) J. Yoet, Ad Pand., xxiii. 4, 63, d. Keessel, Thes. Sel., Thes. 241-243 ; and authors quoted; v. d. Keessel, J. Voet, Ad Pand., xxiii. 4, 66. Thes. Sel, Thes. 240. (") Grotius, Introd., ii. 29, 3, in fin. {I) J. Yoet, Ad Pand., xxiii. 4, 57*, 460 EFFECT OF MARRIAGE OX PROPERTY ROMAN-DUTCH LAW. The power of election extended to all the goods left by the child or the children, -without distinction (o), and might be inserted in the ante-nuptial contract cxprcssis verbis, or tacitl3% e.g., by stipulating that after the children's death the goods should return whence they came (2^)- (b) The parties to the ante-nuptial contract were not limited to intestate succession. It might also be provided, either without fidci comniissum or by way of j^f^t't-commissary disposition (q), that those of the children who would survive the others should succeed to the inheritance of the predeceased ones, and that after the death of the last surviving child the goods should return to the side whence they came, thus excluding the parents from the succession of their children if these died intestate (?•) ; or (c) It might be provided that the last surviving child should be succeeded by a stranger who was named in, or who was a third j)arty to, the ante -nuptial contract. If the stranger were a party to the contract the child was bound by the provisions as to the inheritance and could not exclude the stranger by will, but such provision did not prevent the child from disposing of his proj^erty during his lifetime (s). Unless otherwise provided these different dispositions could be revoked by a subsequent mutual will of the parents (0, and the children were in the same way not further bound by these pro- visions. They could during their lifetime dispose of the whole or part of the goods to which they had succeeded, and after having reached the age at which they were allowed to make a will they could do so by will(«)- Or Special Law might "be Selected to Govern Property. — The provisions regarding the choice of law did not regard the inheritance and law of succession only. It might be stipulated that the law regu- lating the whole of the property during the marriage should be the law prevailing elsewhere than in the country of the husband's (0) V. d. Keessel, Thes. Sel., Thes. (s) J. Voet, Ad Pand., xxiii. 4, 06 ; .362. V. d. Keessel, Thes. Sel., Thes. 243. {]') Ihhl, Thes. 360. [t) Utrechtsche Cons., ii. Cons. 151, (7) IhvJ., Thes. 242 ; Groenewegen, Nos. 4 — 9. n notis ad Grot. Introd., ii. 20, ;3. (o) Grotius, Introd., ii. 29, 3; v. (r) IIoU. Cons., iv. Cons. 4 ; J. d. Keessel, Thes. Sol., Thes. 241 and Voet, Ad Pand., x.xiii. 4, iM.) \ v. d. 360. Keessel, Thes. Sel., Thes. 241, 2". REVOCATION OF ANTE-NUPTIAL CONTRACTS. 461 domicil, provided that in such case the laws adopted by the ante- nuptial contract did not militate against the law of the matrimonial domicil (h). In the same way it might be provided that part of the marriage property, e.g., immovables, should be subject to the law of the country where they were situated, and the rest of the marriage property to the laws of the country of the matrimonial domicil (c). Eevocation of Ante-nuptial Contracts. — As a general rule it may be stated that the provisions contained in an ante-nuptial contract were revocable, though not by act inter vivos, nor all to the same extent or in the same manner. Provisions regarding the exclusion of community of goods, fruits and income and profit and loss, could not be revoked by any act during the existence of the marriage. Such revocation would, in effect, amount to a gift between husband and wife((/). They could, however, be revoked by will, as the revocation would, in that case, amount to a legacy, provided that such will were made iinituo consensu (e). Either of the spouses had it in his or her power by testament to revoke such will and to restore the effect of the ante-nuptial contract as far as he or she were concerned, provided that he or she had not taken any benefits under such will(/). A testamentary revocation was required to be ex^iYGSs (nominative). An ante-nuptial contract was not considered to have been revoked by the general clause contained in a will whereby " all previously made testamentary dispositions " were revoked (g), though an ante- nuptial contract which contained the exclusion of community of property would tacitly be revoked by any subsequent (6) Grotius, IntroJ., ii. 26, 11; ii. iv. 24, 12; v. d. Berg, Nederl. Advys- 29, 3 ; J. Yoet, Ad Pand., xxiii. 4, 19 boek, ii. Cons. 20, 21 ; Boel-Loenius, and 27. Dec. en Obs., Obs. cxxxvii., on p. 810 ; (c) J. Voet, Ad Pand., xxiii. 4, 27. Lybreghts, Eeden. Vertoog, i. 8, o, 4 ; {d) Neostadius, De Pact. Anteu., v. d. Linden, Koopmansh., i. 3, 5, on Obs., iv. in notis on ■p. 21 ; Lybreghts, j). 20. Eeden. Vertoog, i. 8, 2, on p. 112 ; v. d. (/) Van Leeuwen, E. H. E., iv. 24, Keessel, Thes. Sel., Thes. 264; v. d. 12, and authors quoted ; v. d. Keessel, Linden, Koopmansh., i. 3, 5, on p. 19. Thes. Sel., Thes. 265. (e) Grotius, Introd., ii. 2, 9 ; i., Cons. (). This institution was taken over from the civil law (c). It was practised in the Dutch Provinces, though to a limited degree only, as judicial separation (a mensn et toro) which included the separation of the common property, was more readily resorted to {d). The separatio honorum could be obtained by the wife only and had to be pronounced by the Court, as the spouses could not, after marriage had once been contracted, by mutual voluntary arrangement change the law which regulated these effects of their marriage {c). The grounds on which the wife could petition the Court were that the husband was squandering the common propert}' or was so mal- administering her own estate that she might lose all of it and be reduced to poverty if he were allowed to continue the administration thereof (/). The effect of the Court's judgment, granting this separation of goods, was, that the community of property came to an end, and that the husband lost the power of administering his wife's property ; and also, that the wife was no longer responsible for the debts incurred by her husband (r/). In order to have this effect, the judgment had to be published and the division of the common property actually carried out Qi). TI. Ciiratela of the Hushand. — Another method to safeguard a married woman against further loss in the future, and which was mostly resorted to under such circumstances, was the placing of the (/>) Grotius, Introd., i. 5, 24 ; J. Ned. B. E., ii. 190. Yoet, Ad Pand., xxiii. 5, 7. (/) Van Leeuwen, E. II. E., i. (>, 7 ; (c) Eegtsgel. Obs., iv. Obs. 8 ; Fock. Andr., Het Oud Ned. B. E., Fock. Andr., Annot. ad Grot. Iiitrod., ii. 189, 190. ii. 5, 24, on ii. p. 15. (. cit.; Fock. Audr., Ilet Oud Ned. (^) Proclamation of April 23rd, 1793; iJ. II., ii. li)0. Proclamation of May 23rd, 1805, ss. 11 , {q) Eegtsgel. Obs., i. Obs. 31, and 12; Act 21 of 18To, ss. 2, 7. authors there quoted ; Fock. Andi., {a) Act 21 of 1875, s. 9. ANTE-NUPTIAL CONTRACTS — .SOUTH AFRICA. 467 children, is invalid as regards creditors of either the husband or the wife (b). Before the Act 21 of 1875, the effect of an unregistered contract was to deprive the wife of any tacit legal hypothec to which she otherwise might have l)een entitled on her husband's property^ and to postpone her claim against her husband for the return of her own property to those of creditors who had a conventional special hypothec, even though it were of a date subsequent to that of the ante-nuptial contract (c). Non-registration did not deprive the wife of her preference over concurrent creditors, nor of property which was clearly her own before the marriage {). Natal. — All persons married or to be married in South Africa (p) who want to exclude community of goods under the provisions of Law No. 22 of 1863 can do so by an instrument in writing signed by both parties about to be married or by husband and w-ife, in the presence of two witnesses, who should also sign. That instrument, in order to be valid, must be registered within six months after its execution with the Registrar of Deeds (q). All other ante-nuptial contracts must be executed and registered in accordance with the rules laid down above. Persons whose marriages have been or are to be solemnised outside South Africa may adopt community of property or any other community by an instrument in writing signed by both parties in the presence of two attesting witnesses. The instrument, in order to be binding, must be registered (r). Orange Free State. — This matter has been regulated by Law No. 7 of 1892. All ante-nui)tial contracts, in order to be valid and effectual, must be executed (a) in writing ; (b) before a notary i)ublic or some other official who is acting in that capacity according to the existing law^s (s) ; and (c) must be registered in the Deeds Registry. A duplicate original or notarial coi3y must be tiled in the Deeds Registry Office at the time of the registration of the original (0- An ante-nuptial contract entered into outside the Colony, either by (m) Tansend r. Crow (ISSo), 2 K. 74. T. S. 54. {ii) P. and M. Louw r. The (/*) I.e., South Africa south of 20" Liquidator of Hugo, Theron and South latitude : Law 22 of 1863, s. a. Malerbe (1898), High Court S. A. E. {q) Law 22 of 1863, s. 7 ; Act 5 of Digest of L. E. S. A. E., Van Hoytema 1882, ss. 1, 2. and Eaphaely, 15. This decision is {r) Law 22 of 1863, s. 2. entirely in conformity with the practice (s) Laws of 0. E. C. (1901), 651, s. 2. followed in the Cape Colony. (t) S. 1. (o) Ex parte Wells and Wells (1905), 470 EFFECT OF MARRIAGE ON PROPERTY ROMAN-DUTCH LAW. notarial act or otherwise, if duly executed in accordance with the laws of the country where it is entered into and valid there, may be registered in the Orange Free State, and if it is so registered and a duplicate original or a notarially attested copy has been filed, it will be effectual in the Colony as against creditors as if it had been duly made within the Colony (u). Ceylon. — After the jmssing of the Ordinance No. 15 of 1876, ante-nuptial contracts became unnecessary. If, however, i)ersons w'ish to adopt community of property b}^ sj)ecial agreement, this should be effected by ante-nuptial contract, and as regards the execution of such a contract the Roman-Dutch law rules as set out above prevail (a). The same law applies to ante-nuptial contracts entered into previously to June 29th, 1877. British Guiana. — Since the passing of Ordinance No. 12 of 1904 an ante-nuptial contract has become unnecessary'. As regards those entered into i^reviously to that date, the Pioman-Dutch law rules above mentioned prevail. II. Ante-nnptial Contracts. — Contents. — South Africa. — It may be stated generally that, as regards the contents of ante-nuptial con- tracts, their revocation and interpretation, the Pioman-Dutch law rules as set out above are followed (/>). Stii)ulatiorjS opposed to nature, reason, and morality, or prohibited by law, are not admitted (c). The special alterations which are allowed to be made in the general legal consequences of the marriage fall under the following heads : — 1. There may be a limitation of the marital power by agreement that the wife shall have the free and uncontrolled administration and right of alienation of her own property. It is generally deduced from this that the whole marital power may be ex- pressly or imi)liedly excluded by ante-nuptial contract, and the married woman may l^e placed in the same position as if no marriage (u) S. 2; and see Xo. 23 of 1899, dovy,, Inst, of Cape Law, i. o;3— 74 ; Lawn, p. 885. Wcssels, llistoiy of Eomau-Dutch (o) rereira, Laws of Ceylon, ii. 91 — Law, 4G1 dse: Brande, 9 C. T. 11. (e) Ceylon, < »id. \:> >,: isTO, s. 2:3; mG; C. L. J., xvii. (1900), 04. RENUNCIATION OF THE COMMUNITY — COLONIES. 475 Ceylon. — With regard to marriages solemnised previously to June 29th, 1877, the Roman-Dutch law rules apply (//). British Guiana. — The same rules appl}^ to marriages solemnised before the commencement of. Ordinance No. 12 of 1904. Renunciation of the Community. — South Africa. — The Roman- Dutch law rules apply (//). Ceylon. — As regards marriages solemnised previously to June 29th, 1877, the Roman-Dutch law rules apply (i). British Guiana. — Since the Ordinance No. 12 of 1901, these measures of protection against the husband have lost their importance, except for marriages solemnised before the commence- ment of that Ordinance. {g) Pereira, Laws of Ceylon, ii. 93. (/) Pereira, Laws of Ceylou, ii. 130, {h) Maasdorp, Inst, of Cajje Law, 13L 2nd ed., i. 42. CHAPTEK X. effect of :\iarr1age on the property of the husband and- wife in france, belgium, quebec, st. lucia, mauritius,. seychelles, and channel islands. Introductory. Law of France : Prior to the Code Civil. — A community of property, une commnnanti' des hicns, between the husband and wife, formed a part of the customary law of France (a). It had prevailed there from so remote a period that it is doubtful when it was first introduced and from what source it was derived. According to some of the contumes it was the necessary legal effect of the marriage, when there had been no ante-nuptial contract excluding it. According to others, it did not take place unless the parties themselves adopted it by their ante-nuptial contract. In the coutnme of Normandy it was not only declared not to exist, but it was not permitted to be introduced into a nuptial contract. In those provinces that were governed, not by their own contumes, but by the civil law, le droit ccrit, it had no existence, unless by the contract of the parties. There prevailed an important distinction, even amongst those contumes, which established the community. Thus, according to the contumes of Anjou, Maine, Chartres, and Brittany, the com- munity would not take place unless the husband and wife survived the celebration of the marriage a year and a day, a rule found also in the old law of Scotland (^). If either died before that period had elapsed the community was deemed never to have had existence. But if they survived that period, the community had relation to and was deemed to have commenced from the moment of the celebration of the marriage. On the other hand, according to the cnutumes of Paris, Orleans, (a) As to the history of the law of Fuziur-lleniian, Ucp. tit. Contrat do mavricMl women's property in Franco Mariaj,'c ; tit. ConiiuuiuuiteCoujugale, prior to the Code Civil , see VioUet, es. 1 el soj. Precis de I'Hist. du Droit Fran. ; (//) Stair, Inst., i. 1, 1!). LEC4AL COMMUNITY UNDER THE CODE CIVIL. 477 Poitou, Beriy, and other provinces, the community commenced from the moment of the celehration of the marriage, and its effect was not defeated by the shortness of the period the husband and wife may have survived their marriage. In consequence of the adoption of the civil hxw by some of the provinces of France, whilst others were governed by their own particular continues, the property and the rights of the husband and wife in relation to it were regulated by two different systems of law, one, le regime de la commnnaute, and the other le regime dotal. Under the Code Civil. — The Legal Community. — The Code Civil when it abolished these contumes, retained le regime de la com- munaute, and made it the common or general law of France. It would have been its only law if those provinces which followed the civil law had not required that le regime dotal should also be retained (c). The Code, in the rules which it has established, has selected for le regime de la commtniaute ^yhatexei' wa.s most valuable in the contumes, and for le regime doted, the most suitable provisions of the civil law. Le regime de la conununaute, as it is established by the Code Civil, is declared to be the common or universal law {le droit commiDi) of France. It prevails in every case in which the parties have not, by special stipulation or contract, derogated from or modified it (f/). The Code adopts, as a fundamental principle, that the law does not regulate the conjugal society in respect of the jn-operty of the husband and wife, except when they themselves have made no special stipulation respecting it. It leaves them, therefore, at liberty to make such agreements on their marriage as they may deem most conducive to their interests, provided they do not contravene the few restrictions to which it has subjected them (e). J The law of Belgium is similar (/). ^ What Modifications of it by Convention are Prohibited. — These restrictions prohibit (i.) conventions contrary to mo]"ality and public (c) Toullier, Le Droit Civil, liv. 3, (rJ) Art. 1393. The community does tit. 5, du Contrat de Mariage, &c., n. 7 ; not constitute a personne morale dis- Fuzier-Herman, Eep. tit. Contrat de tinct from that of the spouses, Mariage, ss. 37 — 45, and authorities Soubrenie v. Lavieille (1896), Sirey, there cited; Code, art. 1391, and see 1900, i., 511. Eut see Enregistrement injra, p. 478, n. (b), the clause added v. Durand (1901), Sirey, 1903, ii. 285. to this article by the law of July 10th, (e) Art. 1387. 1850. (/) According to art. 76, s. 10, of the 478 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. order (r/) ; (ii.) conventions contrary to the rights resulting from the 2)idssance maiitale, or to the husband as head of the family, or to the jmissance ixiternelle {h) ; (iii.) conventions designed to change the legal order of succession (/) ; (iv.) stipulations in general terms that the conjugal society shall be regulated by one of the customs, laws, or local ordinances, -u-hich formerly governed the different parts of the French territory, and which the Code abrogates (A); (v.) stipula- tions contrary to other prohibitive dispositions of the Code {g). Parties may select Regime of Community or Dotal Regime. — It permits them, however, to declare in general terms that they intend to be married either sous le recjime de la communautv or sous le re(iimedotal{a). If, however, the act of marriage shows that the spouses married without contract, the wife will be deemed, as regards third parties, capable of contracting in accordance with the provisions of the common law, unless in the act which contains the engagement on her part she has declared that she has made a marriage contract (6). If the spouses adopt le regime de la co)itniunaute their rights are governed by the rules which the Code has established for that regime, in the same manner as if they had made no declaration (a). If they marry sous le regime dotal they become subject to the regulations adopted by the Code in relation to the latter regime (a). The simple stipulation that the wife settles property' upon herself, or that it is settled upon her en dot, is not sufficient to subject such property to le regime dotal, if the marriage contract itself does not contain an express declaration in this respect (c). Neither have the spouses placed themselves under that regime by the simple declara- tion of the husband and wife that they are married without comvninautd, or that they shall be separated as to their property {d). Coutume of Paris. — The eontume of Paris was originally extended to Lower Canada and St. Lucia {e). Belgian Civil Code, the marriage act (,'/) Art. 1387. should mention the name of the notary (li) Ai-t. 1388. ■who has made the marriage settle- (i) Art. 1389. ment. If no such mention is made, (A-) Art. 1390. the clauses which are derogatory to {(() Art. 1391. common law will not be valid as (A) Clause added to art. 1391 by against third parties who have made Law of July 10th, ISoO. some agreement with the husband or ((') Art. 1392. wife in ignorance of their marriage [d] Art. 1392. settlement. A marriage settlement is (') Quebec, Edit de creation du void if not made i>rior to the marriage. conseil superieui- de Quebec, Avril, LAW OF LOWER CANADA AND ST. LUCL\. 479 Law of Lower Canada and St. Lucia. — The law of Lower Canada was codified hj the Civil Code which came into force on August 1st, 186(3. St. Lucia, too, has now got its own Civil Code, which hecame law on October 20tli, 1879. As regards the stipulations which may be made on marriage, it is provided by arts. 1177, 1178, and 1179, that : (1) All kinds of agreements may be lawfully made in con- tracts of marriage, even those which in any other act inter vivos would be void, such as the renunciation of successions which have not yet devolved, the gift of future property, the appointment of an heir, and other dispositions in contemplation of death ; (2) all covenants contrary to public order or to good morals, or forbidden by any law, are, however, excepted from the above rule ; (3) thus the consorts cannot derogate from the rights incident to the authority of the husband over the persons of the wife and the children, or belonging to the husband as the head of the conjugal association, nor from the rights conferred upon the consorts by the articles of the Code respecting paternal authority, minority, tutor- ship, and emancipation ; (4) if no covenants have been made, or if the contrary have not been stipulated, the consorts are presumed to have intended to have subjected themselves to the general laws and customs of the country, and particularly to the legal community of property and to the legal dower in favour of the wife and of the children to be born of their marriage. From the moment of the celebration of marriage these presumed agreements become irre- vocably the law between the parties, and can no longer be revoked or altered. Community of property, which the consorts are free to exclude by stipulation, may be altered or modified at pleasure by the contract of marriage, and is called in such case conventional community. Legal dower, which the parties are likewise at liberty to exclude, may also be altered or modified at pleasure, by the contract of marriage, and is called in such case conventional dower. Generally the law respecting the effect of marriage in St. Lucia is the same as that of the Province of Quebec. Law of Mauritius and. Seychelles. — The Code Civil prevails in Mauritius and Seychelles (/). 1663, Edits et Onlounances (LS03), St. Lucia (1889), 1. vol. i. 23; Droit du Consul, &c., Mai, (/) In Seychelles, which, was, by 1664, art. 33 : ihid. 371 ; St. Lucia, art. 8 of the Treaty of Paris (May Arret, November 5th, 1681 ; Laws of 30th, 1814), formally ceded, as a then 480 EFFECT OF MARRIAGE OX PROPERTY LAW OF FRANCE, ETC. In this chapter the provisions of the Code Civil and the Codes of Lower Canada and St. Lucia with regard to the community and the proprietary rights of husband and wife are dealt with together. Channel Islands. — The Coutume of Normandy is the basis of the law of the Channel Islands, which is considered separately. The arrangement of this chapter falls under the following heads : I. The Vi'dimc of community, with its divisions of (a) the actif^ or property of the communit}', including movables and immovables ; (b) the passif, or debts of the community, with the respective liabilities of the spouses, and the wife's power to renounce the community; (c) the administration of the community; (d) the dissolution of the community by death, separation, divorce, &c., and the earnings of married women ; (e) the acceptance or renunciation of the community after its dissolution ; (f) liquidation and partition of the community. II. Dower (or douaire), with its divisions of (a) legal or customary dower, (b) conventional dower or iwefix, in force in Quebec and St. Lucia. III. The contractual rnjime of dot, in force in France. IV. Donations between spouses. V. Marriage contracts, which may either adopt a modified community, or exclude community, or provide for separation of property or other limited forms of community. VI. The Coutume of Normandy and the law in the Channel Islands. SECTION I. The Regime of Community. General Considerations applicable to Legal and Conventional Com- munity. — Jurists, in treating of the community under the (■(Hittinic, and the Codes above named, distinguished between that which is regulated solely by the disposition of the law and that which is regulated by the agreement of the parties. The former is called dependency of Mauritius, to the still law in the Colony. Sec Bui-ge, British Crown, the laws in force ut the vol. i., 2}. 208, as to the present position date of such cession, includinj;^ the of Seychelles : Laws of Seychelles Code Civil, were maintained ; and the Eevi.sed,i., p. vi., n. 1. See Proclama- provisions of that Code with regard to tiou of 1815 (Mauritius Goverumeut the property of married women are Gazette, April 29th, 1815). LEGAL AND CONVENTIONAL COMMUNITY. 481 (■ommiinauti kf/ale and the latter conimiDiaiUe conveiitionnellc. It has been observed that the former receives its appellation, not because the covimuncoitris necessarily induced by the law " vi ipsius consuetudinis (legis) immediate et per se," but because it is founded on a tacit or presumed contract of the parties, wlio, as they have made no express contract, are considered to have chosen that which the law has made for them (//). Capacity to Marry necessary. — The community, whether it be legal or conventional, cannot exist under either system of jurisprudence, except between those who are capable of contracting a valid marriage (h). It may, in the case of a putative marriage, exist in favour of the party who is in good faith (i). Position of Foreigners. — The cinnmunaxUe hgah', as well as con- rentionndle, may also exist between strangers domiciled in France although they had not been naturalized (./). The law of Belgium is the same. In the Province of Quebec it may be regarded as settled that the matrimonial rights of the consorts are fixed l)y the law of the matrimonial domicil, that is by their domicil at the time of the marriage. These rights are not affected by a subsequent change of domicil. Consequently parties married in England after January 1st, 1883, the date of the commencement of the English Married Women's Property Act, 1882 (A), or in Scotland after July 18th, 1881, the date of the commencement of the Married Women's Property (Scotland) Act. 1881 (/), or married elsewhere under a law which does not recognise lej^al community, will not be rendered subject to the law of community by afterwards acquiring a domicil in the Province of Quebec {m). Commencement of Community. — By the Code Civil, which, in the (//) Pothier, Traite de la Commu- L.C., arts. 163, 164. See Cathcart ». naxite, art. prselim., s. 10; TouUier, Uniou Building Society (186-1), 15 liv. 3, tit. 5, c. 2, s. 87; Code Civil, L. C. E. 467 ; Gregory?-. Dyer (1841), art. 1393 ; Civil Code, L.C., art. 1268. 15 L. C. J. 223. (li) See Fuzier-Herman, Kep. tit. {j) Pothier, ihid., part 1, c. 2, s. 21 ; ('ontrat de Mariage, ss. 240, 314, TouUier, ihid., s. 91. et seq. (k) 45 & 46 Vict. c. 75. (/) Pothier, Tr. de la Comm. 1, c. 1, (/) 44 & 45 Vict. c. 21. s. 20; TouUier, liv. 3, tit. 5, s. 90; (/w) Eogers r.Rogers (1848),3L.C. J. Aubry et Rau, v., s. 506, n. 3; 64 ; Astill r. Hallee (1877), 4 Q. L. R. Guillouard, Contrat de Mar , i., s. 347. 120. See De Nicola v. Curlier, [1900] Code Civil, arts. 201, 202; Civil Code, A. C. 21 (H. L.) ; Lafleur, Conflict of M.L. 31 482 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. celebration of marriage, treats it as a civil contract, the community, whether legale or conventionnellc, commences from the day of the marriage, contracted before the civil officer, and the parties are not permitted to stipulate that it shall commence at an}' other period (n). The law of Quebec is the same, having regard to the difference that there is no civil marriage in that country. Effect of Community on Property of Spouses. — In order to ascertain the scope and effect of the community under the Codes of France and of Lower Canada on the ])roperty of the husl)and and wife, their liabilitj^ for the debts of each other, and their respective rights to administer and dispose of the property which is either subject to the community or excluded from it, the course of inquiry about to be pursued will be similar to that which was adopted in treating of the coiiiDuouo hononun and eomvuoiio qiKsstuiim of the Eoman- Dutch law (o). In St. Lucia the effect of community is treated in tlie Code under the heading of "The Assets and Liabilities of Community "( ;>). Generally speaking, the assets of the community consist (1) of movable property possessed by the consorts at the date of the marriage or subsequently acquired ; (2) of immovables acquired during the marriage. As regards immovable property and mov- able property, certain forms of property are specified in various articles of the Civil Code to be immovable, and by one of the sections of the article dealing with interpretation all property not specified in any of the articles referred to above is movable (g). L'actif et le Passif of the Community. — In the language of jurists, as well as in the Code Civil, the subjects of the community compose it actively and passively. The 2)roperty which forms a part of, and augments and enriches it, is said to be Vaciif de la communaute ; the debts and charges which are also the sul)jects of it, but diminish it, are said to compose le ])assif oi the community. L'actif of the Community. — That which composes it en actif, or, in other words, the property of wliich it is composed, is the first subject of inquiry. Lawsin thoProviiico of Quebec, p. 1G3. (o) Snjira, Chapter IX., jiji. 396 It is otherwise as to dower, infra, f< «e(/. ; and see Chapter VI., pp. 283, 291 p, 1G9. Civil Code, L.C, art. 1442. ct seg. {71) Code Civil, art. 1399 ; Civil Code, (2*) Ss. 1192 et seq. L.C, art. 1 2(19. (q) S. 1 (72). PROPERTY COMPOSING COMMUNITY {aCTIF). 483 Code Civil. — The Code Civil uses the foUovang language: "La communaute se compose activement, 1°, de tout le mobilier que les epoux possedaient au jour de la celebration du mariage, ensemble de tout le mobilier qui leur echoit pendant le mariage a titre de succession ou meme de donation (/•), si le donateur n'a exprime le contraire ; 2°, de tons les fruits, revenus, interets, et arrerages, de quelque nature qu'ils soient, echus ou percus pendant le mariage, et provenant des biens qui appartenaient aux epoux lors de sa celebration, ou de ceux qui leur sont echus pendant le mariage, a quelque titre que ce soit ; 3°, de tons les immeubles qui sont acquis pendant le mariage " (s). Civil Code of Lower Canada. — B}' the Civil Code of Lower Canada, " The assets of the community consist (1) of all the movable property which the consorts possess on the day when the marriage is solemnised, and also of all the movable property which they acquire during marriage, or which falls to them, during that period, by succession or by gift, if the donor or testator have not otherwise provided ; (2) of all the fruits, revenues, interests, and arrears, of whatsoever nature they may be, which fall due or are received during the marriage, and arise from the property which belonged to the consorts at the time of their marriage, or from property which has accrued to them during marriage, by any title whatever ; (3) of ail the immovables they acquire during tlie marriage " (0- Immovables belonging to either consort before marriage, or acquired during the marriage, " by succession or an equivalent title," do not fall into the community. They are called ''propres" (it). Immovables acquired during the marriage otherwise than " by succession or an equivalent title" are called "joint acquests of the community" (v) or " conquets." The bieiis meiihles, or personal property which compose the com- munity, are corporeal {les etres physiques) qnce tangi possunt, and incorporeal {des etres moraiix) qiKe injure consistunt. Biens Meubles Corporals. — Biens meuhles corporels hvq those gw^e loco inoveri possunt ; or, in the language of the Code Civil, "qui peuvent (?') Or by titre onereux. See (s) Art. 1401. authorities collected in Fuzier-Her- (t) Civil Code, L.C., art. 1272. man, Eej). tit. Communaute Coujiigale, (*/) Art. 12T5. ss. 61— G4. (r) Art. 1273. 31—2 484 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. se transporter cl'un lieu a un autre, soit qu'ils se meuvent par eux- memes, comma les animaux ; soit qu'ils ne puissent changer de place que par I'effet d'une force etrangere, comme les choses inanim^es " (»'). Test of " Movable " or " Immovable." — Those things which would correspond with this definition, and if considered per se, are movable, may become immovable on account of their destination ; whilst, on the other hand, things which so long as they are attached to and form part of immovable property are immovable, will, when separated from it, become movable. Again, although they may be detached from the immovable property, yet if thej^ are preserved for the i^urpose of being again placed there, they will retain their quality of immovable (x). Neither the bulk nor value of the thing, but its connection with, and its being part of, or its permanent separation from, immovable property, form the criterion for classing it under the one species or the other (;/). Trees. — Fruit. — Crops. — Trees growing, and the fruits hanging on those trees, or any other crops on the ground, partake of the quality of the land, and are therefore real property (^;) . But young trees transplanted into a nursery ground, and kept there for the purpose of being sold, or the fruits or crops which have been gathered, are movable articles {a), whilst those articles which are kept on the farm for the purpose of, and as necessary to its cultivation, and not for sale, are real property in France, but apparently are movables by the law of Quebec (b). Animals, however, on the farm, although employed for the purposes of the farm, were under the coat lime deemed personal property (c). But the Code Civil (r?) declares them to be real property. The law of Quebec regards them as personal. The Civil Code iiv) Art. 528. Civil Code, L.C., (2) Civil Code, L.C., art. 378. art. 384. (a) Pothior, ibid., s. 34; Fuzier- (x) Civil Code, L.C. 380. It is Herman, ad Joe. cit., ss. 200 et seq. doubtful wbethor the materials of a {h) Cf. Civil Code, L.C, art. 379, building which has been entirely with Civil Code, art. 524 ; and see demolished, but which the owner Wyatt's Heirs r. Kennebec E. C. (1880), intends to rebuild, retain their char- 6 Q. L. B. 213 ; Mignault, op,cit.,vo\. acter of immovables. See ^lignault, ii.,p. 414; Pothier, Traite de la Com., Droit Civil Canadien, vol. ii., p. 430. s. 40. (?/) Pothior, Traite de la Com., (c) Ihvl., s. 43. Bs. 27 et seq. ; Toullicr, Iiv. 3, tit. 5, (d) Art. 524. c. 2, 8. 94. MOVAliLK AND IMMOVABLE PROPERTY. 485 of Lower Canada provides: " Movable things wliicli a proprietor has placed on his real property for a permanency, or which he has incorporated therewith, are immovable by their destination so long as they remain there. " Thus, within these restrictions, the following and other like objects are immovable: 1. Presses, boilers, stills, vats and tuns; 2. All utensils necessary for working forges, paper-mills and other manufactories ; manure, and the straw and other substances intended for manure, are likewise immovable by destination " (c). It has been held that in order to make movables immovable by destination the person incorporating them must be proprietor both of the movables and of the immovables. Consequently machinery sold subject to the condition that the property was not to pass until all instalments of the price had been paid could not so become immovable until the property had passed (J) . The enumeration is not limitative. The articles named are illus- trations. So it has been held that the rolling stock of a railway is immovable by destination {(/). Articles in Dwellings, &c.— xirticles attached for a permanency in a dwehing-house, or other building, by being fastened to it with nails, embedded in plaster, or which cannot be detached from it without breakage or without destroying or deteriorating that part of the property to which they are attached (/<), or with- out which the part of the building in which they have been placed would be incomplete, are deemed part of the building, and therefore real property, if they have been put there by the owner of the house ; but if they were put there by a tenant for life, or years, there is no ground for presuming that they were intended to remain there beyond his continuance or interest in the house. They are, in the latter case, personal (i). Articles which were attached to, and made part of the house, although they should be removed, will, if they are destined to be replaced there, continue to be part of it, and retain their quality of immovable ; but if they had not previously formed part of the building, they will not, on account of (e) Art. 379. way v. Eastern Townships Bank (1865), (/) La Banque d'Hoclielaga v. 10 L. C, J. 11 ; Rhode Island Loco- Waterous Engine "Works Co. (1897), motive Works v. S. E. Railway Co. 27 Can. S. C. R. 406. (1886), 31 L. C. J. 86. (^) Wallbridge r. Farwell (1889), (/j) Civil Code, L.C., art. 380. 18 Can. S. C. R. 1 ; Grand Trunk Rail- (i) Pothior, ibid, ss. 47 et aeq. 486 EFFECT OF MARRIAGE OX PROPERTY LAW OF FRANCE, ETC. their destination alone, be immovables attached to it (j). The materials of a house ^Yhich has fallen down, or been burnt, if they are preserved for the purpose of being used in rebuilding it, retain, according to the constitution of the coutiime, the quality of the building, and are therefore immovable property ; but if such intention has been abandoned, they are personal (A;). The Civil Code of Lower Canada provides : " Things forming part of a building, wall or fence, and which are only temporarily separated from it, do not cease to be immovable so long as they are destined to be placed back again " (/). It is difficult to apply these words to the materials of a building which no longer exists (m). According to the rule adopted by the Code Civil and the Civil Code of Lower Canada, the materials arising from the demolition of an edifice, and those collected for the construction of a new^ one, are movable until they are employed by the artificer in building (??). These are some of the leading distinctions between movable and immovable corporeal property. Their further consideration does not come within the i^rovince of this work(o). Incorporeal Property, when Personal and Real.— The quality of incorporeal property, as personal or real, is determined by the quality of the property in, or to which, a right exists, or which is demandable or receivable by virtue of the contract or obligation, or W'hich it is the object of the action to recover. If it be i^ersonal, the right, contract, obligation, or action w'ill be personal. If it be real, the right, &:c., will also be real(?')- "When the debt or demand is a sum of money, or other movable property, it is movable. On the other hand, the demand, if it be of an inheritance, or some other immovable, against the person who is under an obligation to give it, is an immovable or real right {])). " Actio ad mobile consequendum est mobilis, ad immobile consequendum immobilis." In this sense is to be understood the rule, " Qui actionem habet ad rem reciperandam, ipsam rem habere videtur " (r/). Thus, the vendor's demand against the purchaser of (/) Civil Code, Jj.C, art. 380. (o) See Burge, vol. iv. {k) VothiQT, ubi cit. stipr a, ». G-2. (/;) Civil Code, L.C., art. 381; (/) Civil Code, L.C., art. 380. Pothier, Tr. do la Coui., ss. G9 rt seq. (rii) See Migiiaiilt, Droit Civil (7) Dig. lib. iJO, tit. do l^'eg. Juris, Canadinn, ii., p. ■13(;. L. 17, 1. 1.'); Civil Code, L.C., arts. (»0 Art. 532 ; C. C. of L.C., art. 38G. 3^7, 381. MOVABLE AND IMMOVABLE PROPERTY. 487 an estate for the purchase-money is a personal right ; that of the purchaser against the vendor for the delivery of an estate is a real right. Rights in Real or Immovable Property. — Eights in real or immov- able property, as servitudes, rights of emphyteusis. Sec, and in successions, partake of the quality and are deemed part of the pro- perty itself. They are therefore real rights, and are not admitted into the community (r). Tenant's Lease. — The right of a tenant, in respect of the estate which he had taken on lease before the marriage, is movable, and, therefore, forms part of the community. The wife, or her heirs, may, on accepting the community, compel the lessor to leave them in the enjoyment of it, until the expiration of the term. The subject of the demand is not the estate, but its rents and profits (s). Claims for Movables and Immovables. — An action may have for its object to recover movables and immovables. It is movable as to the one and immovable as to the other part of the demand (0. Claims for Movables or Immovables. — When the creditor is entitled to demand one of two things, of which one is a movable and the other an immovable, and the debtor has the option of selecting the alternative, the quality of the creditor's right is suspended until the delivery takes place. If an immovable be delivered it will be excluded from the community ; if, on the contrary, a movable be delivered it will form part of the community. If the creditor has a right only to one thing, but the debtor has the liberty of delivering another thing in its place, the quality of the right will be deter- mined, not by that of the thing delivered by the debtor, but by that of the thing due to the creditor {u} . Debt Secured by Mortgage on Immovable Property.— A debt, not- withstanding it be secured by a mortgage on immovable property, is personal ; for, although the mortgage gives the creditor jus in re, a right in immovable property', yet it is only accessory to, and therefore follows, the quality of the principal demand, which is personal, according to the rule, accessor'uuii seciaiiar pmicipale {a). (r) See note (;*), p. 486. Toullier, Hid., s. 103 ; Baudry-Lacan., {s) Pothier, Traitedela Com., s. 71; ad he. cit. ; Larombiere, Obligations, Toullier, liv. 3, tit. o, c. 2, s. 105. ed. 1885, on art. 1189, n. 12, on art. (t) Pothier, ibid., s. 73; Toullier, 1196, n. 3; and see Civil Code, L.C., »6/(i., s. 96 ; Baudry-Lacan., iii.,s. 45 (1). arts. 1093 et seij. (h) Pothier, ibid., ss. 74, 75 ; («) Pothier, ibid., s. 76. 488 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. duality of Debt alone to be Considered. — In determining whether incorporeal property be personal or real, regard is had to the quality only of the debt, not to the cause in which the debt originated. A sum of money which was due to one of the conjoints at the time of their marriage will be part of the community, notwithstanding it was the price of real property, which that conjoint had disposed of before the marriage. Lebrun had maintained a contrary opinion., and contended that the debt represented in some measure the estate, and that as the latter, if it had not been disposed of, would have been excluded from the community, so also ought the debt to be excluded (b). The correctness of his opinion has been controverted by his commentator, as well as by Eenusson(c), Pothier (d), and Toullier (e), and their authority is confirmed by the arrk to which thej^ refer (/). Rentes Constituees a Prix d'Argent. — Les rentes constitiiees d prix d'argcnt are perpetual annuities, constituted by the payment of a certain sum of money, and redeemable, at the will of the grantor, on his repayment to the grantee of the sum which he had received ; but the grantee himself has no right to compel such redemption. The contume of Paris has in express terms declared these rents to be immovable, " Rentes constituees a prix d'argent, sont reputees immeubles jusqu'a ce qu'elles soient rachetees " {g). Rentes Viageres. — It has been doubted whether les rente>i viarjeres, that is, annuities granted for the life or lives of one or more persons, on the payment of a certain sum of money, without any right of redemption by the grantor, are to be considered immovable, under the coutumes of Paris, and other places, which declare perpetual rents immovable. The affirmative is maintained by Pothier and other authors, and is sanctioned by the authority of an arret of the Parliament of Paris, of August 4th, 1780 (/<). The arrears of such rents, which accrued before the marriage, (/*) Lebrun, Tr. do hi t'oiji., liv. 1, jugalo, ss. 72, 75; see /A/'/., s. 76, as to c. 5, s. 1, dist. 1, n. 1(5. the case of an immovable sold between ((•) Traite de Conj., part 1 , c. 3, n. 15. the marriage contract and the marriage. (f/) Pothier, Traite de la Com., s. 77, (/) See Pothier, ml lor. cit., s. 77. liv. '.i, tit. 5, c. 2. {;/) Dui)lessi.s, art. 94, Tr. de Dr. (f) Du Kegime en Com., .s. 95 ; Code Incorp., liv. 2, pp. 32, '3'3. Civil, arts. 52<>, 529. See also Fuzier- (//) Pothier, Traite de la Com.,s. 90 ; Herman, Eep., tit. Communaute Con- Merlin, Eep., tit. Rente Viagere, s. 10. li EXTES ] I A G Eli ES — OFFICES . 4 8 L> do not retain the (juality of immovable, but form part of the community (i). Tlie Civil Code of Lower Canada has changed the old law as to the legal character of these rents. It provides : " Constituted rents and all other perpetual or life- rents are also movable by determination of law ; saving those resulting from emphyteusis, which are immovable " (a). The Code Civil has declared those rents to be movable property. ^' Sont aussi meubles par la determination de la loi, les rentes perpetuelles ou viageres, soit sur I'etat, soit sur des particuliers " {h). A rente viagere is excluded from the connnunity if it has been created [under a condition of inalienability, for in that case its passing into the community would involve a partial alienation (r). Reversibility. — A re)ite viagtre constituted in favour of the spouses by means of money belonging to the community and without a condition of reversibility in favour of the survivor passes to the community {d) . The effect of a clause of reversibility has given rise to contro- versy. The prevalent view, however, is that such a clause is valid, but that the surviving spouse owes a recompense to the connnunity for the advantage derived from it {e). Offices. — Offices, which were formerly the subjects of sale and transmission, and rights of presentation, were under the coutume immovable (/). Such sales having been suppressed, this species of property is not recognised by the Code or by the law of Quebec. But in France by the law of Aj^ril 28th, 181(3, certain ministerial officers are empowered to present, for a^jprobation, their successors, provided the latter jiossess the legal qualifications for their office. The effect of this law is to render the presentations to those offices the subjects of sale and transmission ((/). These are deemed {i) Pothier, Traite de la Com., s. 90; n. 9; Laureut, D. C. F., xxi., }>. 258, ArrGt, August 4th, 1729; Deiiisart, s. 218. tit. Communaute, n. 84. (e) Lapaune v. Lapaiine (1864), C. (a) Art. .388. Paris, Sirey, 1865, ii. 4 ; Barberet v. {h) Art. 529. Barberet "(1881), C. Lyon, Sirej-, (c) Fuzier-Herman, Eep., raf /or. c//., 1884, ii. 146; and cf. Leyraud v. s. 99. Meunier (1851), Dalloz, 1852, i. 25 : {d) Potbier, Constitution de Rente, Enregistrement r. Pellerin (187o), s. 242; Troplong, Du Contr. de Mar., Sirey, 1873, i. 339. i., s. 407 ; Guillouard, i., s. 375 ; Aubry (/) Art. 95. et Eau, v., pp. 283, 284, s. 507, and {g) Burge, 1st ed., i., 343, citing 490 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC personal, because they are considered subjects of property only in respect of the sums of money for which the presentations are sold(/0. The community includes (so far as the venal value of the office is concerned, the title itself is propre) a ministerial office held by the husband at the time of the marriage, or acquired by him in the course of it (0- Fruits. Natural and Civil. — Fruits, the natural production of the soil, although they are produced from property which is excluded from the community, and those which are termed civiles, as interest, arrears of rent, &c., due or received during the marriage, are, under tlie Codes, part of the community (,/). Literary, Dramatic, and Industrial Property. — The literary property of authors is personal property and a subject of the community (A;) . By virtue of a law of July 14th, 18Gfi (7), when an author was married under the regime of community the surviving spouse has, as a commun en biens, a moiety of the full property in the coj)yright, and the enjoyment of the other moiety under a special successional right created by the enactment. Unpublished manuscripts, found among the papers of the author on the dissolution of the com- munity, do not belong to the community (m). The property in dramas, paintings, sculpture, drawings, engravings, musical com- positions and inventions belong to the community, on the same principle and subject to the same conditions (;<). Exceptions to Rule by which Movables of Conjoint fall under Com- munity. — Under the Codes there are certain exceptions to the general rule, by which the movables of either conjoint form part of the comniunit}'. Products of Separate Real Property, which are not Fructus. — Those produced from the separate real property of one of the conjoints. Arret, Juno 2()t1i, 1 820 ; Sirey, torn. 20, 1 272. ]>art 1, p. 4:5. (A-) TouUiev, ihld., s. 116; Adbry et (//) Toullior, liv. 3, tit. 5, c. 2, s. 112. Eau, v.. p. 284 and n. 11 ; Guillouard, (/) Duparc /'. Naude (l)So3), Sirey, i., s. 382. See authoiities summarised I8.j;5, i. 4(J8 ; La Lyoimaise Oio. v. in Fuzier- Herman, o'/ he. tit., s. 11 o }l<\'('\ (1880), Sirey, 1881, i. 49; (1880), Sirey. 1881. i. 25, jw c'o/*Ym. t'ii7,ii). see also Guillouard, i., ss. 408, 409; [ii. 2 or ii. 5)3]; Laurent, xxi., Aubry et Ran, v., p. 291, s. 507; s. 228; Baudry-Lacantiuerie, Precis Dornier r. Dormev(186:3), C. Besan^on, de Droit Civil, ii., n. 15; Baudrv- Dalloz, 186;j, ii. 49 ; Melines v. Lacaiitinerie, Courtois et Surville, Meliues (1881), Sirey, 1882, i. 79; Contrat de Mariage, 2iid ed., i., Eouillat V. Roiiillat (18. 129. 88. 129 H se,,. (/') Potbier. ihid., ss. 99, 100. Code (j-) Bugnot snv Potbiur, vii., p. 9:5 Civil, arts. lA'M, 1436; Aubry et Rau, MOVABLES MAY BE EXCLUDED FROM COMMUNITY. 493 Indemnity Paid by Insurance Company. — The indemnity paid by an insurance compan}' for the loss by fire of an immovable i^vopre of one spouse xQiwnAn^ propre (c), even if the premiums were paid out of the money of the community {d). Money Due pour Retour. — A sum of mone}^ which, upon the division of a succession consisting only of immovable property, may be due to one of the conjoints pour retour, to make his share equal to the shares of his co-heirs, is an immovable, because it is substituted for his right in that which was immovable {e). But when the succession consists of movables and immovables, and the former may so greatly exceed the latter, that the conjoint, as his lot or share, receives nothing but movable propert}^ the share of such conjoint will be movable property (f ). The principle on which this rule proceeds is thus recognised by the French Code : " Chaque coheritier est cense avoir succede seul et immediatement a tous les effets compris dans son lot, ou a lui echus sur licita- tion, et n'avoir jamais eu la propriete des autres effets de la succession " {(i). Minors. — Old French Law. — The old arrets of France established another exception in the case of minors. On the marriage of a minor, dc suo, whose estate consisted solely of movables, one-third only of those movables were allowed to form part of the com- munity (/?). This latter exception is not retained under the Codes of France and Lower Canada (/). Money, Given or Bequeathed. — Money or other movables which have been given or bequeathed to either conjoint, before, or dnrant h' mariaije, did not compose part of the community if the donor, or v., p. 288, s. 507, n. 23 ; Guillouard, i., (/) Burge, 1st ed., i., 346 ; Pothier, s. 395; C. C. of L.C., arts. 1303, ihid., ss. 100, 101; Toullier, ihi) Art. 1275. Kau, v., p. 287, n. 20 ; Guillonard, i., (7) 8eo Baudiy-LacantiTierio, Cour- 8. 400 C. ('. of li.C, art. 1272. toi.s ot Survillo, <»;». cit. i., 11. 318. {m) Art. 1491 ; Tioi)loi)-, i., s. 491 ; (;) Art. 127G. IMMOVABLES — PliOPBES AND ACQUp/l'S. 49 Whereas, under the French Code, gifts of immovahles do not fall into the community, whether the donor be an ascendant of one of the consorts or not, unless it is so provided by the donor (s). Upon this point the law of Quebec has retained the rule of the Coutume de Paris, while the French law has departed from it (/). An important practical consequence of the dilt'erence is that in Quebec a legacy of an immovable by an ascendant of one of the consorts, in favour of the two consorts jointly, lajDses if the consort through whom the relationship exists predeceases the testator (») ; whereas if the legacy had been by a stranger, and if one of the consorts had predeceased the testator, his or her share would pass by accretion to the survivor {x). By art. 1195 of the Civil Code of St. Lucia: "The immovables which the consorts possess on the day when the marriage is solem- nised, or which fall to them during the continuance of the marriage by succession or an equivalent title, do not enter into the community." Biens immeuhles (immovable or real property), as the subjects of succession, were, in resj)ect of their qualit}^ distinguished under the coutumes as proj^res and acquets. Propres. — Generally. — The term iwopres was applied to such immovables as devolved on the party by the title of succession, either in the direct, or collateral line, or by gift or bequest, from the person to whom the donee or legatee would succeed in the direct line. It corresponds with the terms avita, antiqiia, patrimouiaUa, which are to be found in other Codes. Acquets. — Generally. — Biens acquets are those which the party acquires by his industry, skill, or by purchase, according to the ordinary signification of that term, or by gift from a person to whom he could succeed only in the collateral line. The terms yropres and conqutts, or acquets, are still in common use in the Province of Quebec. The further consideration of this distinction does not fall within the province of this work (?/). In Relation to the Community. — Propres. — Conquets. — Acquets. — In (s) Code Civil, art. 1405. M. L. E. 4 Q. B. 328. (t) See Com. Eep., ii., p. 207. {x) Civil Code, L.C., art. 868 ; see (?/) Dubois V. Boucher (1883), 3 Dor. Duimy v. Surprenant (1860), 4 L. C. J. Q. B. 241; see St. Ann's Mutual 128 ; Mignault, vol. G, p. 156. Building Society v. Watson (1882), (y) See Burge, vol. iv. 496 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. relation to the community, the term pi-opres is used in contradis- tinction to that of conqueU, or acquets. The former is appHed to propert}' which is excluded from the community' ; the latter is applied to property which is the subject of the community. The hii'HS proprcs include not only those which are propres en mntiere (Ic succession, but those which belonged to either conjoint before the marriage, or had been constituted propres by tlie stipulation of the parties, or by the terms in which they had been given, or bequeathed to either of the conjoints. Tlie Code Civil does not, in regard to successions, retain the distinction between hiens projJres and hiens acquets. It seems,, indeed, to have avoided the use of this term, even to designate the Itiens excluded from the community, for it describes them as J)iens which nentrent point en communaute. The Code of Lower Canada also makes no difference as to succession between propres and acquets. But it does not avoid the term propres as convenient to express property excluded from the community {z). The English version translates this " private property." The terms acquets and conquests are of the same import, in respect of the nature of the property, and might be indiscriminatel}" used to distinguish that which is admitted into the community from that which is excluded. But the term conq}iet is more correctly applied to property acquired en commun, or le produit tfune collaboration eomntune. Both terms are used indiscriminately in the Code Civil (a). The Code of Lower Canada in the French version speaks of conquets. In the English version it is " joint acquests " {h). Property presumed to be Acquet. — It was a maxim under the several coutunies, except that of Normandy (c), that all property was presumed to be acquet unless it was proved to be propre. The burden of that proof was incumbent on the party who alleged that the property was propre. "In dubio, prai-dia non praesumuntur antiqua, sed de novo conquestu " (cl). The Code Civil has adopted the same presumption. " Tout (2) Art. 1270. {(l) Burge, Ist ed., i.. o4.s, citing (o) Arts. 1401, 1408. Dumoulin, sur la Cout. de Paris, s. 13, {}>) Arts. 127:j, 1279. tit. 1, gl. 6, n. ;5 ; Merlin, Rep. tit. (f) Art. 4G, du Regl. de IGGG. Propre, b. 19, n. 1. IMMOVABLES, PROPBES AND ACQUETS. 497 immeuble est repute acquet de communaute, s'il n'est prouve que I'un des epoux en avait la propriete ou possession legale anterieure- ment au mariage, ou qu'il lui est echu depuis a titre de succession ou donation " (c). The law of Quebec is the same ( /). The coutnme of Normandy, adopting a contrary presumption, considered all property to be propre which was not proved to be acquet (g), and this presumption was followed by another, namely, that it should be deemed tohe propre ex parte paternd, unless it was proved to have been derived ex parte maternd (h). Rents and OflSces. — Under the coutumc of Paris, whatever would be propre en matiere de suecessioji, is jnopre of the community. Rents and offices, which are declared by a coutume to be immovable, are hiens propres, as subjects of succession, in the same manner as other real property. But, in order to be propre, when they devolve on the conjoint, they mvTst have been propre in his ancestor. If rents were movables, according to the law of the ancestor's domicil, and, consequently, were not possessed by him as propres, the con- joint, although domiciled under a coutume which regards them as immovable, will not succeed to them as immovable ; and they will, therefore, be acquets faits pendant le mariage, and not excluded from the community (?)• In Quebec all rents are movable except those resulting from emphyteusis (/i). In order that property should be propre in the person of the heir who succeeds to it, it is necessary that it should be possessed as an immovable by the person to whom he succeeds ; but it is not necessary that it should have been possessed by the latter as propre, for it is a maxim that property which was an acquet of the deceased becomes the propre of his heir when it devolves on him (i). In Quebec there is now no distinction between a propre and an acquH as regards succession. Immovable Property Devolving on Conjoint during Marriage by way of Succession. — Immovable property, corporeal or incorporeal, which devolves on the conjoints pendant le cours du mariage by the title (e) Art. 1402. {h) Jixt. 103, du Eegl de 1666. (/) Art. 1273. (0 Pothier, Traite de la Com., ss. {(/) Burge, 1st ed., i. 349; Art. 102, 107, 111. du Eegl. de 1666. {k) C. C. of L.C., art. 388. M.L. 32 498 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. of succession, are, under the Codes of France and of Lower Canada, excluded from the community (I). The possession of the immovable by the ancestor, at the time of his death, is sufficient to exclude it from the community, and proof that he was the owner of it is not necessary (??0- Property Relinquished to Conjoint. — Property relinquished by the father, mother, or other ancestor to the conjoint, either to satisfy a debt which the former owes to the latter, or on condition that he pays other debts of the donor, is not a conquH, either under the coutume, or Code. Such a transaction is considered a family arrangement and not a sale, and the community is reimbursed any sums drawn from it in payment of such debts (n). "L'immeuble abandonne ou cede par pere, mere, ou autre ascendant, a I'un des deux epoux, soit pour le remplir de ce qu'il lui doit, soit a la charge de payer les dettes du donateur a des etrangers, n'entre point en communaute, sauf recomjDense, ou indemnite " {o). The law of Quebec is the same {p). Under the Code of St. Lucia, as regards immovables abandoned or ceded to one of the consorts by any ascendant of the consort, either in satisfaction of debts or subject to the payment of the debts due by the donor to strangers, these do not fall into the community {q). The share of the succession which the co-heir obtains by judgment, licitation, or private adjustment with his co-heir, is jjropre, and excluded from the community ; for the share, no less than the entire inheritance, is acquired jure familice et titulo successionis (r). (/) Cout, art. 220 ; PotHer, Traite liv. 3, tit. 5, c. 2, s. 134. de la Com., s. 166; Code Civil, art. (m) Pothier, ihid., s. 113. 1404. If the marriage contract con- (?i) Pothier, ihi). The law of Quebec is the same (e). Art. 1198 of the St. Lucia Code contains a similar provision as to immovables acquired during marriage in exchange for others that belonged to one of the consorts, which are substituted for the immovables thus alienated. Purchase of Immovable by means of Movables. — The subrogation is not confined to the exchange of one immovable for another immov- (/) Alts. 1402, 1404 ; C. C. of Low. ;J40. Can., art. 1275. (/*) Art. 1407; Fuzier-Herman, ofZ («) Pothier, Traitecle la Com., s. 197 ; hic. cit., ss. 435 et seq. ; Cod. Civ. Ann. Argent., art. 418, gl. 2, n. 3 ; Lebrun, under art. 1407. liv. 3, c. 2, 8. 1 ; Dupless., pp. 339, (c) Art. 1278. SUBSTITUTED PROPERTY FRUCTU8 NATU BALES. 503 able. Thus, if the jDurchase, ycmlant le mariage, of an immovable, be accompanied with a declaration that it is made by means of movables which were propres of the community, and belonged exclusively to the purchaser, the immovable thus purchased will also be proprc. If, however, the property purchased greatly exceed the amount of the money which was proprc, the property will be an acquit as to the excess ; but when the difference is inconsiderable, the conjoint who purchases will be a debtor to the community for the difference, and the entire property will be excluded from the community {d). If the estate which the husband acquires pendant le manage be in t'he stead of that which was the proprc of the wife, not only must it be expressed to have been so acquired, but she must consent, either at the time of the purchase, or at any time subsequently, before the dissolution of the community, that such substitution shall take place {e). Price of Immovable Propre Sold during the Marriage. — Tlie price received for an immovable, the propre of one of the conjoints sold pendant le mariage, will so far retain the character of proprc, that if it be outstanding at the dissolution of the community, it will belong exclusively to tlie conjoint, and if it has been employed in the community it must be first deducted {c). This rule is laid down in art. 1433 of the Code (/). The law of Quebec is the same {g). By the law of St. Lucia, where an immovable or other object belonging exclusively to one of the consorts is sold and the price of it is paid into the community, such consort has a right to compensation {h). Fructus Naturales not gathered during the Community. — It has been already stated that the fructus naturales, industriales, and civiles, received or accrued during the community form part of it. (d) Pothier, Traite de la Com., a profit contrary to the provisions cf s. 197; C. C. of L.C., art. 1357. See the Code: Fuzier-Herman, Code Civ. Mignault, Droit Civil Can., vol. 6, Ann., under art. 1433, n. 2; and see p. 239. n. 1 and authorities there cited, as to (e) C. C, art. 1435 ; C. C. of L.C., the theory of recompense between the art. 1306 ; Pothier, ibid., s. 199. community and the patrimonies of the (/) The community must in all cases respective spouses, indemnify the patrimony of the spouse (g) C. C. of L.C., art. 1303. to the detriment of which it has made (/*) Art. 1221. 504 EFFECT OF MARRIAGE ON PROPERTY — LAW OF FRANCE, ETC. Those which have not been gathered during the community belong, not to the community, but to the conjoint who is the owner of the estate on which they are still standing or hanging. Such is the law established by the coutume. " Les fruits des heritages propres, pendans par les racines au terns du trepas de I'uu des conjoints par mariage, appartiennent a celui auquel advient ledit heritage, a la charge de payer la moitie des labours et semences " (/). The Code Civil also treats such fruits, until they are separated from the soil on which they are growing, as part of the soil. They are, therefore, immovable, and excluded from the community ( j). The law of Quebec is the same (k). The coutume requires that the owner of the estate, who receives, on the dissolution of the community, for his own exclusive benefit, the crops, &c., on the ground, should reimburse the community the expense incurred in producing them. In that case he only pays, in efi'ect, a moiety. If it be incurred on the wife's estate and she renounces the community, she must pay to the heir of the husband the whole expense (l). If it be the husband's estate on which it has been incurred, and the wife or her heirs renounce the communit}', there is not recompense due by his heirs to the wife or her heirs (/). Fructus Civiles. — Of the fructus civiles, those only fall into the community which accrue during its continuance. Those which accrued before the marriage become part of the community, not as fruits, but as movables. Those on\j which do not accrue until after the dissolution of the community belong to the owner of the estate which has produced them. " Fructus civiles tunc nasci intelliguntur, quum incipiunt deberi." The different species of fructus civiles gave rise to distinctions respecting the period at which they might be considered to have accrued. Rents of Country Estates. — Rents of estates in the countr}^ which are payable in kind, are not due until the crops have been gathered. If the dissolution of the community take place before the harvest, the whole rent belongs to the owner of the estate ; if it take place after the harvest, the whole belongs to the community. If it take (?) Uupless., avt. 231, Hv. 2, c. 4, (/>■) Art. 450. p. 440. (/) Potbior, Traitc de la Com., (;■) Art. 585. ss. 212, 13. ESTATE PURCHASED BETWEEN CONTRACT AND MARRIAGE. 505 place in the midst of the harvest, the community will have a part of it, in proportion to the quantity of the crops gathered (?»)• If a gross annual sum is paid, as a rent for an estate, producing different kinds of crops, and the community is terminated after one kind has been gathered, but before another kind has been gathered, an estimate is made of the value which the crop gathered bears to the whole, and a proportion of the rent according to that estimate is i)aid to the community. Rents of Houses in Towns. — Rents of houses in towns are payable cle die in diem, and, therefore, all arrears, up to the day of the dissolution, fall into the community, and the owner of the house is entitled to all the rent which subsequently accrues (»)• The Code adopts the same rule in relation to civil fruits (o) except that it makes no distinction between rents of farms and rents of houHOS. The law of Quebec is the same (j>). Estate Purchased between Contract of Marriage and Marriage. — In the interval between the contract of marriage stipulating for the community, and the actual celebration of the marriage, one of the conjoints might purchase an estate. The jurists were divided in opinion as to the efi'ect of such a purchase. By some it was con- sidered that the estate ought to be deemed subject to the community, whilst others considered that it must remain propre, but an indem- nity be made to the community for the price which had been paid {q). Under the Code Civil this question cannot arise, for it declares that the estate purchased shall be deemed an acquet of the community. "Neanmoins, si I'un des epoux avait acquis un immeuble depuis le contrat de mariage, contenant stipulation de communaute, et avant la celebration du mariage, I'immeuble acquis dans cet intervalle entrera dans la communaute, a moins que I'acquisition n'ait ete faite en execution de quelque clause du mariage, auquel cas elle serait reglee suivant la convention" (?•). The law of Quebec is to the same effect. The Civil Code (s) pro- vides that if after the contract of marriage in which community is (?«) Pothier, art. 450, s. 219. c. 4, n. 8, 9 ; Duparc-Poullain, Princ. (h) Pothier, Traite de la Com., du Droit, torn. 5, p. S3, ss. 219, 220. (r) Art. 1404. (o) Ai-t. 586. (s) 0. C. of L.C., art. 1275; see (2)) C. C. of L.C, art. 451. p. 498, ante, (q) Lebrun, Traite de la Com.., liv. 1, 506 EFFECT OF PROPERTY ON MARRIAGE — LAW OF FRANCE, ETC. stipulated and before the marriage is solemnized one of the consorts pm'chase an immovable, the immovable pm*chased falls into the community ; unless the purchase has been made in execution of some clause of the contract, in which case the destination of the immovable is according to the agreement. Community en Passif. — The property of which the community consists is charged with all the movable or personal debts which the conjoints had respectively contracted before or during their marriage, or which were due by the successions which had devolved on them. These debts constitute the community en jjassit. This liability results from a principle of the law of France which makes the personal debt of an individual a charge on his entire movable estate : and as by the marriage the whole of that movable estate passes into the community, the debts also pass with it. The coutiunc of Paris accordingly treated this community of debts as the necessary consequence of the community of property (0- Debts of which Passif of Community Composed. — The Code Civil adopts the same rule. "La communaute se compose passivement, 1°, de toutes les dettes mobilieres dont les 6poux 6taient grev^s au jour de la celebration de leur mariage, ou dont se trouvent chargees les successions qui leur 6choient durant le mariage, sauf la recom- pense pour celles relatives aux immeubles propres a I'un ou al'autre 6poux; 2°, des dettes, tant en capitaux qu'arr6rages ou iuterets, contractees par le mari pendant la communaute, ou par la femme du consentement du mari, sauf la recompense dans les cas ou elle a lieu («) ; 3 % des arrerages et interets seulement des rentes ou dettes passives qui sont personnelles aux deux epoux " (x) ; 4^, des reparations usufructuaires des immeubles qui n'entrent point en (t) Burge, 1st ed., i. 358 ; Dupless., Cod. Civ. Ann., under art. 1409 ; Kep. art. 221, liv. 1, c. .'), s. 1, pp. 402, tit. Communaute Conjugale, ss. 751 40.3, 415, 421, ot liv. 2, des Actions, et seq. The debt must result from an c. 1, s. 1, p. 599. authentic act anterior to the marriage, (k) This article only creates a pre- or having received a date certain sumption which will be rebutted if it before that period (art. 1410); if the is shown that the debts were contracted amount is under 150 francs the validity in the husband's own interest : Mar- and authority of the debt may be chais V. Dumee (1900), C. Bourges, proved by witnesses. Art. 1341. Cf. Sirey, 1901, 2, 39 ; Marchais v. Faillier Deletraz v. Lachenal (1892), C. of Civ. (1902), Siroy, 1903, 1, 117. Just. Geneva, Sirey, 1892, iv., 40. {x) Art. 1409. See Fuzier-Herman, LIABILITIES OF COMMUNITY — PASSIF DEBTS. 507 communaute ; 5^, des aliments des epoux, de I'education et entretien des enfants, et de toute autre charge du mariage. The law of Belgium is the same. The law of Quebec is the same (//) . The liabilities of the community are similarly defined in art. 1200 of the St. Lucia Civil Code. Debt must be Movable. — The debt with which the community is chargeable must be movable, that is, it must be money or some other movable due by or demandable from the conjoint. Damages for the non-delivery of a specific thing would be deemed a movable debt. The community is charged with a debt for which the conjoint is liable in soUdo with others, or which is secured by mortgage. The whole of a debt may be immovable, but a part of it may be also movable. Thus the succession which has devolved on the conjoint is liable for all the ancestor's debts, but if the conjoint has only a certain share, for instance a third, he is personally liable only to the extent of that third, and to that extent only is the com- munity charged. It is to be reimbursed the amount of its funds which have been applied in discharging the residue of those debts (z). Debt Contracted by Husband as Surety. — The community is liable for a debt contracted by the husband, as surety for a person who becomes insolvent, and even for a fine or costs which have been awarded against him (z). It is not chargeable with a debt contracted by the husband for his own exclusive advantage and which cannot benefit the community, as by discharging his own {propre) estate from a servitude («). A sum engaged to be given in dotem to the child of a former marriage, or to endow personally a child of the marriage {h) is not chargeable against the community, because it is contracted solely for his own benefit (c). "Warranty by Husband against Eviction. — If the husband, on a sale by him of the wife's {propre) estate without her consent, gives to the purchaser a warranty against eviction, the debt which he has thus incurred was, according to the opinion of Pothier, in his treatise on the contrat de rente (d), a charge on the community. In his treatise on the community, he retracted that opinion, but his {ij) C. C. of L.C., art. 1280. L.C., art. 1356. (z) Cf. Potbier, Traite de la Com., (c) Pothier, ibid., s. 251 ; Code Civ., s. 249; C. C. of L.C., arts. 1294, 1295. art. 1422. (a) C. C. of L.C., art. 1304. (endant le manage, the creditors may, in respect of movable debts, enforce their demands against the property of the community. If the succession which has devolved on the husband be wholly immovable, the creditors may resort either to the immovable property itself or to that which is the propre of the husband, or to the projDerty in community, with indemnity, in the latter case, to the wife or her heirs {a). When a succession, wholly immovable, has devolved on the wife, which she has accepted with the consent of her husband, the creditors of the succession may enforce payment of their demands, not only against the immovable property itself, but also against all the property which belongs to her. They have, however, no recourse against the property of the community. If the succession has been accepted by her only under the authority of the law on her husband's refusal, they cannot resort to the proj)erty in community ; and if the immovable, the subject of the succession, be insufficient, they can only obtain payment out of the wife's reversionary property in her other separate estate {h). Thus they can only sell the wife's propres under an execution, subject to the usufruct of the husband during the community (c). {y) See note [x) on. p. 510. arts. 1413, 1417 ; Baudry-Lacantinerie, (z) Potlirer, Traite de la Com., s. 242. Courtois-Surville, Contrat de Mariage, See Code of Civil Procedure, L.C., 2nded., i., n. 546. art. 605. (c) See Civil Code, art. 1413 ; C. C. (o) Pothier, i?)/c7.,s. 727; Code Civil, of L.C., art. 1284; Baudry-Lacan- arts. 1411, 1412; C.C. of L.C., art. 1283. tinerie, Courtois-Sui-viUe, uU cit. (h) Pothier, ■ihid., s. 257 ; Code Civil, siqn-a, n. 596; Hue, 9, n. 149. 512 p:ffect of marriage on property — law of france, etc. Even this last-named limited right is not given by the law of Quebec. The Code of Lower Canada provides : " The creditors, in case the j)roperty of the succession proves insufficient, have no recourse upon her other property until the dissolution of the community " (d). Liability of Husband after Termination of Community. — After the termination of the community, the husband continues liable for the whole of the debts contracted by himself before the marriage, and for those which during the community were contracted by him- self {e). It is maintained by some writers that the same rule applies to debts contracted during the community by the wife with the husband's authorization. But others argue that such a debt is a personal debt of the wife and that the husband is not bound personally, but only as head of the community. Consequently his liability after the dissolution of the community is limited to one-half. But if the wife renounces the community, or if the share falling to her or her heirs is insufficient to pay the debt, the husband is liable subsidiarily for the balance (/). And this solution has been adopted by the law of Quebec (g). In respect of the movable debts contracted by the wife before her marriage the creditors can proceed against him, or his heirs, for the moiety only of those debts ; but if her estate is insufficient to satisfy that moiety, they may resort to the husband's estate for the difference (/<)• This is expressly declared by the Civil Code of Lower Canada (i). It was a maxim of the law of France, that qui epouse la femme, epouse les clettes. The Code Civil does not authorise the creditors to resort to the husband's estate in case that of the wife be insufficient to pay the moiety of her debts (./'), Liability of Wife after Termination of Community. — After the termination of the community the wife is liable to creditors for ('/) Art. 1284. Mignault, Droit Civil Canadien, vi., (e) Civil Code, art. 1484 ; C. C. of p. 334. L.C., art. 1371. {h) Pothier, ihid., s. 730. (/) Pothier, Traite de la Com., s. (/) Art. 1372. 730 ; Baudry-Lacantinorie, Courtois- (;) Toullier, liv. 3, tit. 5, c. 2, Snrville, 07*. cit., vol. 2, n. 1199 and ss. 240 et seq. ; Baiidry-Lacantinerio, n. 1239. Coiirtois-Surville, op. cit., n. 1199. ((/) Civil Code. L.C., art. 1372; RENUNCIATION OF COMMUNITY BY WIFE. 513 the whole of the dehts due by her at the time of the marriage, but as the community is charged with them, she is entitled to recover one moiety of them from the estate of the husband. She is also liable to them for such part of the debts owing by a succession she had accepted under the authority of the Court, and not with the consent of her husband, as the succession itself was insufficient to satisfy (k). The wife, who has paid more than a moiety of a debt of the community, cannot recover from the creditor the excess, unless the acquittance state that the payment was only for her moiety {I). Renunciation of the Community. — In order to protect the wife against the consequences of an abuse by the husband of his extensive power over the property in community, the coutume, and the Codes of France and Lower Canada, permit her to renounce the community. As she may, however, have accepted it under a mis- apprehension of the amount of the debts with which it was charged, the liability of herself, or her heirs, as against the creditors, as well as against the husband, is by both systems of jurisprudence limited to the amount of the profit which she, or her heirs, might have derived from it, provided she has made a good and faithful inventory. A wife may, under the Civil Code of St. Lucia {m), renounce the community, and the wife who so renounces is freed from all contribution to the debts of the community, both as regards her husband and as regards creditors, even those towards whom she bound herself jointly and severally with her husband. She remains liable for debts which have become a charge upon the community through her, but has in such case her recourse against her husband. Under the Code Civil. — The language of the Code is : " La femme n'est tenue des dettes de la communaute, soit a I'egard du mari, soit a regard des creanciers, que jusqu'a concurrence de son emolument." This also applies to Belgium (h). The law of Quebec is the same (o). (k) Code Civil, arts. 1486, 1417 ; 2271 et seq. The wife, who fails to C. C. of L.C., arts. 1373, 1288; make the inventory within the legal Pothier, Traite de la Com., s. 731. period of limitation, is deprived of the {I) Code Civil, art. 1488 ; C. C. of benefit of this article and is liable for L.C., art. 1375; Pothier, tiiV/., s. 736. the debts of the community, ultra (m) Arts. 1256 et seq. vires emolumenti; Chiclet v. Ponceot {n) Art. 1483 ; Fuzier- Herman, (1883), C. Besan5on, Sirey, 1884, ii. 45. Eep., tit. Communaute Conjugale, ss. (o) C. C. of L.C., art. 1370. M.L. 33 514 EFFECT OF MARRLIGE ON PROPERTY — LAW OF FRANCE, ETC. The wife, even though she accepts the community, is not liable by the law of St. Lucia, for its debts, either toward her husband or toward creditors, beyond the amount of the benefit she derives from it ; provided she has made a correct and faithful inventory and has rendered an account both of what is contained in the inventory and of what has fallen to her in the partition ( j^) . The Inventory. — This privilege can only be enjoyed by the wife, or her heirs, provided that on the dissolution of the community, by the death of either conjoint, a just and true inventory be made, and there be no fraud or default on the part of herself, or her heirs. According to the coutume, " Pourvn toutefois qu'apres le deces de I'un des conjoints, soit fait loyal inventaire, et qu'il n'y ait faute ni fraude de la part de la femme, ou de ses heritiers " (5). And according to the Code Civil : " Pourvu qu'il y ait eu bon et fidele inventaire, et en rendant compte tant du contenu de cet inventaire que de ce qui lui est echu par le partage." This also applies to Belgium (r). The law of Quebec is the same (s). The inventory is absolutely necessary, as between the wife, or her heirs, and the creditors, but not so as between her heirs and the husband. As against him, the amount received by the wife's heirs as their share of the community is established by the partition between them and the husband of the property of which it consisted, and he is not permitted to dispute the amount fixed by an act to which he was a party (t). The inventory ought to resemble that which the wife is required to make, when, on the death of her husband, she renounces the community (0. There must be a just and true account rendered by her, to the creditors by whom she is sued, of all the property of the community which she has received as her share on the partition. She is to be debited with the value affixed to the movables according to the inventor}^ and she is not at liberty to deliver them in sj^ecie, after having used them. She is to be debited with the value at which the immovable property was estimated at the time of the partition, if {p) Art. 1286. supra, ss. 2278 et seq. (7) Art. 228. (s) Art. 1370. (r) Art. 148.'^ of the I'^rench and (t) Pothier, Tr. de la Com., ss. d(iO, Belgian Codes; Fuzier-IIermau, nhi 742, 74J. ADMINISTRATION OF THE COMMUNITY — HUSBAND's POWER. 515 she retains it ; or, if she restores it, she is chargeable ^Yith its deteriorations, if occasioned by her act. She is debited with the fnictus received by her, so far as they exceed in vaUie the interest on sums paid by her in discharging the debts of the community. She is to be allowed all such debts as she may have paid to the creditors, as well as her share of the expense of the inventory, partition, and account (»). Her liability to the creditors is limited to the balance which may be due from her after these debits and credits (r) . The preceding observations are equally applicable, when the heirs of the wife who has predeceased her husband are sued by the creditors {w) . Position of Hypothecary Creditors. — Creditors who have an hypothec, or lien, on immovable property, which, on the parti- tion, has fallen to the wife, or her heirs, as her or their share, may proceed against, and recover from her, or them, in respect of that immovable, their whole debt; but she is entitled to be repaid a moiety of such debt by the other conjoint. She may resist the demand of the hypothecary creditor by showing that she has paid ■ another creditor whose hypothec was prior, and that she is entitled to stand in the place of such prior creditor (x). If such payment exhaust the value of the immovable, the creditor has no further claim against her (r). Administration of the Property in Community. — Under the Coutume. — Under the coatume, the husband has the exclusive administration of the property in community and an absolute power of alienating it. " Le mari est seigneur des meubles et conquets immeubles par lui faits durant et constant le mariage de lui et de la femme, en telle maniere, qu'il les peut vendre, aliener, ou hypothequer, et en faire et disposer par donation, ou autre disposition faite entre vifs a son plaisir et volonte, sans le consentement de sa dite femme, a personne capable, et sans fraude " (ij). The law of Quebec is the same (z). (u) Civil Code, art. 1482 ; C. C. of art. 1491 ; C. C. of L.C., art. 1378. L.O., art. 1369. (x) Potliier, ibid., ss. 751, 755 ; (i-) Pothier,TraitedelaCom.,ss. 747 Code Civil, art. 1489; C. C. of L.C., et seq. ; Code Civil, art. 1483; TouUier, art. 1376. liv. 3, tit. 5, c. 2, ss. 282 et seq. {y) Art. 225. {lu) Pothier, ihkl., s. 741 ; Code Civil, [z) C. C. of L.C., art. 1292. 33—2 516 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. Bv art. 1211, and the following articles, of the Code of St. Lucia, the husband has the same power of administration. He may sell, alienate, or hypothecate the property, without the concurrence of the wife. The husband may in his own name bring actions relating to the moval)les of his wife and to the possession of her immovables. Powers of Alienation, &c. — He is authorised to sell, alienate, hypothecate, or charge the jDroperty of the community with all the debts which he contracts, although it could not be pretended that they had any relation to the concerns of the community. He may burden it with services. He is not accountable for such of the property as he may have lost or deteriorated by acts of commission or omission (a). Movable and Possessory Actions. — As a necessary consequence of the power thus vested in him, the coutume also transfers to the husband all the movable and possessory actions, notwithstanding they may be derived from the wife, and exclusively^ regard her separate immovable property. He can sue and be sued in such actions without making her a party (b). On all these points the law' of Quebec is the same (c). Actions of this description, which, whilst she was sole, had been instituted by or against the wife, cannot be so continued after the marriage, but they must be prosecuted against the husband, although it is competent, and it is the interest of the wife's creditor, to join her as a defendant to the action, in order that he may acquire an hypothec on her property (d) . In Quebec a wife not separated from bed and board is sufficiently summoned by service made upon her husband (e). Testamentary Dispositions. — Donations. — As the husband, on the dissolution of the counnunity, is entitled to one moiety only of the property, he cannot make a testamentary disposition of more than a moiety. The donation, or other disposition, which he may make, must, in the terms of the coutume and by the law of Quebec, be entre vifs (/). If he has bequeathed a specific thing, included in (). The Code gives him a similar power {z). By art. 1216 of the Civil Code of St. Lucia the husband has the administration of all the private property of his wife. He cannot without her consent dispose of the immovables which belong to her. He has a power of leasing for nine years as in Quebec {a). Titles of Honour. — By virtue of the marital power the husband acquired titles of honour, and exercised the honorary rights of seignory, performed the feudal services annexed or incident to the wife's property, and presented to those offices the appointment of (rr;)Pothier,TiaiteclelaCom.,s. 497; (z) Cout., art. 233; Pothier, Tr. de Code Civil, arts. 1426, 1427; Toullier, la Puiss., ss. 81 et seq. ; Code Civil, liv. 3, tit. 5, c. 2, s. 239. art. 1428 ; Toullier, ibid., ss. 381 et {y) Pothier, Traite de la Com., s. seq.; C. C. of L.C., art. 1298. 731 ; Code Civil, art. 1419 ; Toullier, (a) Art. 1217. liv. 3, tit. 5, c. 2, s. 233. 520 EFFECT OF MARRIAGE ON PROPERTY — LAW OF FRANCE, ETC. which was incident to the propert}- {h). But these rights no longer exist. Eents or Profits of Separate Property. — He also received for himself, or the community, the rents or profits of her separate property. He could grant leases of it, for a term not exceeding nine years, if it were rural, or six years, if it were situated in Paris, provided such leases were made without fraud (c). The Code of Lower Canada provides : " Leases of the wife's property made by her husband alone cannot exceed nine years ; she is not bound after the dissolution of the community to maintain those which have been made for a longer term " (d). The Code Civil has adopted a similar provision, allowing him to grant leases for nine years, without making the distinction existing under the coutume in respect of property situated in Paris (e). Leases. — The lease must be made sansfraude. It is presumed to be fraudulent if it be made during the wife's last illness, or if it be made by anticipation, that is, at a time when there are many years remaining before the existing lease expires (/). By the Code of Lower Canada " leases of property of the wife for nine years or for a shorter term, which have been made or renewed by the husband alone more than a year in advance of the expiration of the pending lease do not bind the wife unless they come into operation before the dissolution of the community " (g). According to the Code (/t), leases made or renewed by the husband for nine years or less, or more than three years before the expiration of the existing lease, if it regards rural property, or more than two years before the same period, if it relates to houses, are void, unless their enjoyment has commenced before the dissolution of the community. Consent of Wife necessary to Disposition of her Property by Husband. — The hus1)and has not the power of nuiking any disposition of the wife's separate property without her consent. The coutume expressly withholds it from him. " Le mari ne pent vendre, echanger, faire partage ou licitation, charger, obliger, ni hypotequer le propre (/') Pothier, Tr. cle la Piiiss., ss. 87 et Herman, Pep. tit. ("oininunaute Coii- 8f(j. jugalp, ss. 1407 et sa]. (c) Cout., art. 227. (/) Pothier, ibid., s. ), by declaration that the conjoint is an absentee in the legal sense (q), and in France by divorce. Separation de Biens. — The separation de hiens may be obtained by the wife, if it appears that her separate property, or dowry, is in danger of being dissipated by the husband, or, that in consequence of his conduct, there may not remain sufficient estate to satisfy her claims (7-). The wife alone has the right of demanding a separation de biens (s), (i) 1 Duplessis, art. 226, p. 346. lum under the law of June 30th, 1838 ; (./) This term includes not only acts in that case legal proceedings afPecting of alienation, properly so called, but the community ought to be directed all acts of disposition passing the limits against the husband as represented by a of simple administration: Dalloz, special mandatorj' : Guignardr. Bonnet Suppt., tit. Contrat de Manage, s. 478. (1886), Sirey, 1890, i., 322. {k) As to movables, see Dalloz, Eep., (q) Code Civil, art. 124; C. C. of tit. Contrat de Mariage, ss. 2693 et seq. ; L.C., arts. 1310, 109. Suppt., eodem verho, ss. 479, 993. (r) Pothier, Traitedela Com., s. 510 ; {I) Ai't. 1428. Code Civil, arts. 1443, 1563; C. C. of (m) Art. 1298. L.C., art. 1311 ; Fuzier-Hernian, Code (?i) Pothier, Traite de la Puiss., Civ. Ann., imder arts. 1443, 1563; s. 85 ; Code Civil, art. 1428. Toullier, liv. 3, tit. 5, c. 2, s. 3, s. 20 ; (0) Cout., art. 232 ; Code Civil, art. Cochin, tom. 5, p. 142 ; Case of the 1433 ; C. C. of L.C., art. 1303. Marquis du Pont du Chalet ; Burge, (p) Pothier, Tr. de la Com., s. 510 ; 1st ed., i., 371. Code Civil, art. 1441. It is not dissolved (s) Pothier, ihid., s. 513 ; Code Civil, by the husband's committal to an asy- art. 1443. 522 EFFECT OF MARRIAGE ON PROPERTY— LAW OF FRANCE, ETC. The Code of Lower Canada provides that her creditors cannot demand it even with her consent (t). Generally speaking, the law in St. Lucia as to separation is the same as in Quebec. By art. 1233 the separation can be demanded only by the wife herself ; her creditors cannot demand it, even Mith her consent. Separation de Corps involves Separation de Biens. — The separation de corps carries with it separation de hiens {u). The separated wife regains her full civil capacity and need not be authorised either by the husband or justice {u). Judicial Sentence necessary for Separation de Biens. — It can only take effect by means of a judicial sentence which has been hnnd Jide executed, and which has been publicly pronounced. A voluntarj^ separation is null (.r). The law of Quebec requires that the judgment shall be inscribed by the prothonotary upon a list kept for that purpose and posted in the office of the Court which rendered the judgment (//). The French (and Belgian) Code requires, as essential to its validity^ that before its execution, it should be made public by a notice upon a list appropriated to this purpose, in the principal hall of the Court of First Instance, and also, if the husband be a merchant, banker^ or tradesman, in that of the Tribunal of Commerce, at the place of his domicil {z). The judgment has relation, as to its effects, to the day of the demand by the wife {z). Husband's Creditors may Contest Wife's Demand. — The Code Civil adopted a rule, which was established by the Parliaments of Dijon («) and liouen Qj), that the creditors of the husband should be permitted to contest the wife's demand for a separation de biens (c). The law of Quebec is the same (d). Position of Wife's Creditors. — But the wife's creditors cannot with- (t) Art. 1315. («) Arret, :Marcli 20tli, IGoO. (/() Art. 311, as defined by law of (i) 7i(V/., August 30tli, 1555; Merlin, February Gth, 1893. Eep., tit. Separation, ss. 2, 3, {x) Potbier, Tr. de la Com., ss. 514, art. 2. 518, 523 ; Code Civil, arts. 1443, 1444 ; (c) Art. 1447 ; Code do Proc. Civ., C.C. of L.C., arts. 1311, 1312. art. 871. {y) Code of Civ. Proc., art. 1097. (d) C. C. of L.C., art. 131(J; Code (z) Code Civil, art. 1445 ; C. C. of of Civ. Proc, art. 1094. L.C., art. 13M ; Potbier, ihiro2)re dii com- iinuinnte may not always be subject to doiiaire, but it may be stated, as an universal rule, that if it be a subject of the community, it is not subject to the douaire{e). The property must have descended during the marriage { peudant icehii). The wife is not, therefore, entitled to do naive of an estate which descends after his death. The estate to which he succeeds by substitution, if the author was a direct lineal ascending ancestor, will be subject to it, notwithstanding the person, who was interposed before the husband, was a stranger ( /'). Douaire of Second Wife. — If there are children of a preceding marriage, and the husband again marries, the second wife's douaire is limited to that part of the husband's estate to which the douairi' of the first marriage does not attach. Instead, therefore, of taking a moiety, her doudire would be one-fourth only of his estate ; for, it is a rule, that douaire sur douaire na lieu, nor is the second wife's interest enlarged, although the children of the former marriage should die before her husband (g). The law of Quebec is the same, though the Code is rather obscurely expressed. It says : " The customary dower resulting from a second marriage, when there are children born of the first, consists in a half of the immovables, not affected by the previous doivev, which belong to the husband at tlie time of the second marriage, or which accrue to him during such marriage from his father or mother or other ascendants. The rule is the same for all subsequent marriages which the husband may contract, when there are children of previous marriages "(/O. This might be read as meaning that when an immovable is affected by dower on account of a first marriage, it will not be affected by dower on account of a second marriage. But this is not the intention. The article means tliat only the free half (cZ) Supra, p. 000. (g) Cout., art. 253; Pothier, thi). (/) (."oin. Rep., ii., p. 239. (/) Pothier, Unci., s. 61. (./) Pothier, Traite du Douaire, s. (m) I hid., s. IS. oli ; ('. (A of fi.C., arts. 1458, 1471. (u) Ibid., s. 77. (/.) Pothior, //-(•(/.. s. 57. (<-) Ibid., s. 70. RENUNCIATION OF DOWER — QUEBEC. 539 Upon all these points the law of Quebec is the same. An estate subject to donaivc, if it be voluntavily sold by the husband, without the wife's consent, or if it be taken in execution, by creditors, whose demands are subsequent to the marriage, continues liable to her claim, into whatever hands it may have passed. It would be otherwise if the sale had been an act of necessity, for public purposes, in which case the sale would have been unimpeachable, and she would be entitled to her dDiuiire from the price received for it (p). So completely is the wife's title protected, that prescription begins to run only from the day of the husband's death (q). Renunciation of Dower — Law of duebec— By the law of Quebec the mere consent of the wife to an alienation by the husband is not enough to affeci her dower or that of the children. She must make an express renunciation of her dower either in the deed by which the husband alienates or hypothecates the immovable or by a subsequent deed (r). But such a renunciation entirely discharges the dower both as to the wife and as to the children. It " has the effect of discharging the immovable affected by dower from any claim which the wife may have upon it under that title, and neither she nor her heirs can exercise against any other property of the husband any recourse to' be indemnified or compensated for the right thus abandoned ; not- withstanding the provisions of this title or any other provisions of this Code respecting the replacements, indemnities, or compensations which consorts or other parties owe to each other in cases of partition." " As to the dower of the children, it can be exercised only upon immovables subject to the dower of their mother which have not been alienated or hypothecated by their father during the con- tinuance of the marriage, with her renunciation made in the manner prescribed in art. 1444. " Children who have attained the age of majority may, after the death of their mother, renounce their dower in all cases in which the latter could have done so herself, and in the same manner with the same effect" (.s). (p) Pothier, Traite de Douaire, s. 84 ; p. 86 ; C. C. of L.C., art. 1449. Eev. Stats, of Quebec, art. 5754 a. (r) C C. of L.C., art. 1444. iq) Cout., art. 117; Pothier, ibid., (s) Arts. 1445, 1446. 540 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC These articles came into the law of the Province of Quehec hy a statute always referred to as the Registry Ordinance (0. The renunciation in favour of the third party is not in itself regarded as a gift hy the wife to the hushand or as heing prohihited as a form of hinding herself for her hushand, hut it will he narrowly examined, and will not stand if it was in reality a way of giving security for the hushand. But a creditor in good faith is now protected {>i). The codifiers say of the wife's jjower to extinguish the right •of the children, " that it is contrary to all principles of equity and sound legislation " (.r). The polic}' of the law of the Province of Quehec is to protect purchasers of immovables who are in good faith against charges which do not appear upon the register {ij). Accordingly a very important article has been inserted in the •Civil Code of Lower Canada which formed no part of the coutnme. "The right to legal customary dower cannot be preserved other- wise than by the registration of the marriage certificate with a description of the immovables then subject to such dower." " As regards immovables which may subsequentl}^ fall to the husband, and l)ecome subject to customary dower, the right to dower ui)on such immovables does not take effect until a declaration for that purpose has been registered, setting forth the date of the marriage, the names of the consorts, the description of the immovable, its liability for dower, and how it has become subject to it " {,:). 11. The Doiiaire Conventionnel, or Prefix.— It is competent for the husband and wife by their nuptial contract to constitute a douaiie essentially different from that which is established by the coutnme. This (loiiaire conrentionnel, or prefix, may exceed, or be less than, that given l)y the confunir (a). Property which may be Subject to. — All, or only a part of the husband's property, or such part only as belonged to him at the time of the marriage, or such part only as may have belonged to him at the time of his death, may be made subject to the wife's (louairc, (<) 4 Vict. c. .'JO; Consol. Stat. 1jA\ (//) See Barsalou r. Eoyal Institu- c. :37, arts. .jI— .Jl. tion (1896), 11. J. (l o Q. B. ;5S3. (a) See art. 13(»1, and Ericliseu /•. (z) Art. 211G. See arts. 2133, 2147. Cuvillier (1880), 25 L. ( '. J. 80. («) Tothier, ibid., ss. 123, 127. (.r) Com. Rop., ii., ]). 243. DOT'AIIIE COiYVEXTIOXyEL^ OR PL'EFIX. 541 or it may be made to consist of a particular estate, or of a certain sum. of money. It may be stipulated that it shall cease if she enters into a second marriage (/f). Douaire a Grant in Perpetuum. — From the nature of the wife's interest, it is always deemed to -have been granted only for her life, unless it be expressly granted to her in jx-rpetnuin. Construction of Contracts relative to Douaire. — In the construction of contracts constituting doiiaire, tlie rule observed in respect of other contracts and testaments, namely, that the gift is deemed to be made in pei-petimm, unless it be expressly restricted to the life of the grantee, or legatee, is not adopted {h). Renunciation. — The wife having her douaire settled by contract, cannot renounce it, and claim a douaire coutiiniier (c). The Code of Lower Canada provides " Conventional dower excludes customary ; it is, however, lawful to stipulate that the wife and the children shall have the right to take either the one or the other at their option," " The option made by the wife, after the opening of the dower,, binds the children, who must remain satisfied with whichever dower she has chosen. If she die without having made the choice, the right of making it passes to the children. If there be no contract of marriage, or if in that which has been made, the parties have not explained their intentions on the subject, customary dower accrues by the sole operation of law. But it is lawful to stipulate that there shall be no dower, and such a stipulation binds the children as well as the mother " ((/). Vesting of Wife's Right. — The right of the wife is acquired by the marriage, but it does not vest in possession until the death of the husband. Jamais luari nc paya douaire is a maxim of the French law(e). As the routume did not restrict the wife's right to the event of her husband's natural death, there seems ground for considering, that, on his civil death, she would also have been entitled to it (/). (o) See note (a), p. 540. ((/) Arts. 1429—1431. (/*) Pothier, Traite du Douaire, (e) Pothier, ibid., s. 15,'}. s. 124; C. C. of L.C., art. 1437. See (/) Ihid., s. 155. Civil death was Lacerte v. Boisvert (1891), 17 Q. L. E. abolished in Fraucebylawof May 31st, 110. But of. Mignault, Droit Civ. 1854, and in Quebec by 6 Ed w. VII.,. Canad., vi., p. 419. c. 38 ; see Burge, vol. ii., 260. (f) Cout., art. 261. 542 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. The wife must have survived the hushand. In the Province of Quebec dower may be opened and become exigible by separation from bed and board, or separation of property only, if such effect result from the terms of the contract of marriage. It may likewise be demanded in the case of the absence of the husband under the circumstances and conditions expressed in arts. 109 and 110 (g). In Quebec, therefore, the old rule still holds good, jamais mari nc paya douaire, in other words, dower never becomes payable but by the natural death of the husband. But it is subject to two qualifications. (1) The parties may stipulate that dower shall be payable after judgment of separation. (2) The wife of a man who has disappeared and has not been heard of for five years, or his children, if the wife has predeceased, may claim dower. They must, however, find security to return it if the absentee reappear. Demi Douaire.— When the extravagance of the husband endangers the wife's claims, she is permitted to obtain, by sentence, not her entire douaire, but a certain allowance for her maintenance, and which has been called demi douaire {h). She may obtain a judgment of separation of property which will leave the husband liable to contribute to her support if he is able to do so (/). Rights of Wife on Death of Husband. — Under the coutume of Paris, although it was different in many other coutumcs, the wife, on the death of her husband, is immediately seised, j^lenojure, of her dovdirc (/»■). She is entitled to all ihe friicius natiirales et civiles from the day of his decease. She is not bound to make any demand of bis heirs, and against them she is deemed to be in possession, so tliat she may sustain her petition or complaint. This is also the law of Quel)ec (/). Partition. — Upon the death of her husl)and, in order to terminate her tenancy in common with his heirs, and hold her douaire in severalty, tiie wife may institute an action of partition against them (;;(). ifl) ('. ('. of L.C., art. 1438. (/.•) Pothip'-, ibid., s. 1 J!>. (//) I'otliior, Traite dii Douaire, (/) C. C. of L.C., arts. 1441, 1453. s. 157. . [m) Cout., art. 236. (t) C. C. of L.C., art. 1317. • ' RIGHTS OF WIFE ON DEATH OF HUSBAND PARTITION. 543 The whole property subject to the claim is brought together and valued; it is divided into two shares, and the party by whom the first choice is made is decided by lot. The expense of the valuation, and division, is borne by the widow, and the husband's heirs. If there was an inequality in the two shares, the larger share is, during the continuance of the doiiairc, charged with an annuity, equal to the difference (n). The wife and the heirs of the husband must account and allow to each other the reimbursements, or indemnities, to which they are respectively entitled. Thus, if property could not have become subject to the douaire unless the husband had paid a certain sum of money, the widow must, during the continuance of the douaire, pay the interest on a moiety of that sum ; and, on the other hand, if the husband has received money on the alienation of the property for public purposes, his heirs must pay to the widow the interest on a moiety of that sum {n). The parties, on this, as on any other partition, are considered to have given each other a warranty against eviction. Thus, if the widow be evicted from any part of the moiety allotted to her, the heirs must pay, so long as the douaire continues, an annuity equal to the annual value of the part from which she was evicted (o). The law of Quebec is the same upon all these points. Partition is only necessary when the dower consists " in the enjoyment of a certain portion of the property of the husband " {p). By " property " is here meant " immovables." The Code provides : "If the dower of the wife consists in money or rents, the wife, in order to obtain payment of it from the heirs and representatives of her husband, has all the rights and actions which belong to the other creditors of the succession " {q). When there are immovables subject to dower the heirs may demand a partition if the widow refuses it (r). The widow may bring her action coufessoria servitAitis usufructus against the husband's heirs, or against those persons to whom he may have alienated the estates subject to her douaire. But the (h) Potliier, Traite du Douaire, {n) Ibid., art. 1451. s. 176. (r) Ibid., art. 1452. See Code Civ. (o) Ibid., ss. 186 et seq. Proc, arts. 1037 et seq. {p) C. a. of L.C., art. 1452. 544 EFFECT OF MARRIAGE ON PROPERTY — LAW OF FRANCE, ETC. action is sustainable against the latter only ^hen there is not in the succession i^roperty sufificient to give the widow her part, and Avhen the alienation has taken place without her consent (s). But it should be observed, that, even although she has not con- sented to the sale, yet if she has accepted the community, and thus have become liable, with her husband, under his warranty, to the purchasers, for one moiety, she will, in respect of such moiety, be precluded from recovering it from the purchasers. Quem de evictione ti net actio, etnn afientcm repelUt cxceptio (t). But by the law of Quebec nothing but express renunciation by the wife can affect her right to dower or that of the children (ii). The right of the widow to the fnictus civiles and naturales, her duty as to the cultivation and preservation of the property, the debts or liabilities which she must discharge, and the reciprocal obligations of herself and her husband's heirs, resemble those of other usufructuaries (x). The law of Quebec is the same (y). The contume only requires her to give security to enjoy the ])ro- perty en hon pere de Jam Hie, in the event of her again marrying (z). The law of Quebec is the same. So long as the dowager remains a widow she enjoys the dower upon giving the security of her oath to restore it (a). Extinction of Widow's Usufruct. — Both under the contume and by the law of Quebec, the usufruct of the widow is subject to be extin- guished by her death, by her acquiring the inheritance, by ceding the usufruct to the owner of the inheritance, and by the several other means of extinction to which usufruct is subject in other cases (h). Forfeiture of Dower. — The wife forfeits her dower if she be con- victed of adulter}', or has committed fornication during the first year of her widowhood, or has refused to cohabit with her husband after being judicially summoned (c). By the Civil Code of Lower Canada, " The wife may be deprived of her dower by reason of adultery or of desertion. In either case an action must have been instituted by the husband, and a subsequent (s) Pothier, Tiaite dvi Douaire, (//) C. ('. of L.C, arts. 1453, 1458 — s. 187. 1460. (0 Jl^i'l., 6. 192. (z) Cent., art. 264. («) ('. C. of Iv.r., art. 1443, supra, (a) C. C. of L.C, art. 1454. ]>. 539. (6) C. C. of L.C, arts. 1462, 479. (.t) J'otliier, Hii). Douaire Conventionnel : Children. — The douairc co)ivcution)irl or prefix of the children is, like the douaire coutumicr, the inheritance or absolute property in that which has been assigned as the douairc of the wife. " Le douaire constitue par le niari, ses parens, ou autres de par lui, est le propre heritage aux enfans issus dudit mariage, pour d'icelui joiiir apres le trepas de pere et merer incontinent i^ue douaire a lui"(^). According to the construction given to the expression est le propre heritage aux enfans, they have the absolute ownership in that which has been assigned as the douaire, whatever may be the subject of it. Thus, if it consist of a sum of money, the wife receives the interest during her life, and the principal on her death belongs to the children (?•). The law of Quebec is the same, but it must always be remembered that conventional dower is capable of being modified in any way by the agreement which creates it (s). The children must have survived tlieir father in order to acquire a perfect title to their douaire. If they die in his lifetime they (»«) C. C. of L.C., art. 2J;J. (7) Dui-e, 1st cd., i., .'588; 1 Du- (h) Art. 1437. plessis, art. 255, c. 4, 3. 1, p. '250. (") rotliier, Traito ilu Douaiio, (r) Cout., art. 257; Tothier, idi'l ,. V. 299. S3. 313 et seq. ip) Art. 1469. (s) C. G. of L.C., art. 1437. children'.s dovaiuk rowEXTioyxFL. 547 have no interest therein which they can transmit to tlieir heirs (0. But by the kiw of Quebec the principle of representation applies : Grandchikh-en whose father or mother, being a child of the marriage, died before the opening of the dower, are entitled to the share of their parent (//). As their title does not vest in possession until the death of their father they are bound to prove that fact (r). Upon his death they have an interest transmissible to their heirs. and are, like the wife, aei^B^ pleno jure of their douaire (r). The children may on the death of their father compel a partition b}' instituting their action of partition, to whicli the mother must be a party in respect of her usufructuary interest (v). An hypothec is acquired in the case of the douaire coutunder from the day of the marriage, and of that which is conrentionnel from the day of the contract {z) . But by the law of Quebec the hj'pothec affects only immovables described in a declaration which must be registered {a). Conditions on which Children are entitled to the Douaire. — The children entitled to the dou«ii-e must be issus du maricuie ; but under this description are included children born before, but legitimated by the marriage, as well as posthumous children (A). They must be also capable of succeeding ; if, therefore, at the death of their father, they had lost their civil status, they cannot claim the doucdrc (h). Upon the first point the law of Quebec is the same (c) ; upon the second it was so till civil death was abolished. It is necessary that the child who claims douaire should renounce the succession : " Si les enfans venans dudit mariage ne se portent {t) Potliier,Tr;iiteilu Douaire, .s.;327. (h) Votlnev, Hn J., ss. 'S-ko et scf. {ii) Art. 14GG. ('■) C. C. of L.C., art. 1466 ; the Act (..) Pothier, //-/'/., s. .'J^-J; C. C. of of 1906 (6 Edw. YII, c. S.S), which L.C., art. 1441. abolished civil death in Quebec, enacts (?/) Fothiev, ihii J., s. 33.3; C. C. of that a person condemned to death or to L.C, art. 14d2. perpetual personal punishment cannot (z) Pothier, ibid., s. 343. take under a will except as an ali- (rt) C. C. of L.C, arts. 1447, 144S, mentary allowance. But, perhaps by 2116, See Perraultr. Caron (1S91), 14 oversight, it does not deprive such a Ji. N. 129. In practice such registra- person of the right to take on intestacy. tion is not common. 35—2 548 EFFECT OF .MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. hei-itiers de leur pere, et s'abstiennent de prendre sa succession, en ce cas ledit doiiaire appartient ausdits enfans purement efc simpie- ment. Nul ne pent etre heritier et doiiairier ensemble, pour le regard du doiiaire coutumier ou prefix " ('/). This rule is founded on the principle, that one of several heirs shall not derive an advantage from Nvhich the others are excluded, and on the incompatibility, if there be only one heir, of his uniting in himself the character of a creditor, in respect of his donaire, with that of a debtor, as heir. This rule prevails, as between him and the co-heirs, even although they should have accepted the succession under the benefit of inventory ; but as against the creditors, he may claim his doiiaire in preference to them («). The Code of Lower Canada provides : " A child who assumes the quality of heir to his father, even under benefit of inventory, can have no share in the dower " (/). A child cannot claim his doiiaire and also retain a gift which has been made to him (y). Such gift, therefore, must be collated, and any declaration on the part of the parent exempting the child from collating it, will, as against the co-heirs and creditors, whose demands were prior to the donation, be nugatory and void (/<). The Code of Lower Canada provides : " In order to be entitled to dower the child is bound to return into the succession of his father all such benefits as he has received from him, in marriage or other- wise, or to take less in the dower " (i). It is not very clear whether the rule of the old law still holds good that a declaration exempting the child from returning or collating a gift will be refused efi'ect. It w^ould appear diflicult to maintain that a marriage covenant might not provide that donations made to children w^ere not to be subject to return. For art. 1437 says in express terms that conventional dower may be modified at will. On the other hand, when the marriage covenant is silent, such a {0 C. C. of L.C., art. 1471. Lacoste v. Fachan (190;J), C. Pan, (/)) Code Civil, art. 1540. On the ('o^ Sirey, 190;}, ii., 48, and authorities generally, see Fuzier-IIerman, Code collected in n. (2). Civ. Ann., under arts. 154(1 d se^. ; (a) Code Civil, art. 1542. Eep. tit. Dot. ~ (h) Ihi'L, art. 1542. {q) Code Civil, art. 1541. 550 EFFECT OF MARRIAGE ON PROPERTY — LAW OF FRANCE , ETC. time of the marriage, and cannot afterAvards be augmented or diminished (c). When it has been settled by the father and mother jointly, Avithout distinguishing their respective shares, it is deemed to have been settled by tbem in equal portions (d). If it be settled by the father only, in respect both of paternal and maternal rights, the mother, though present at the contract, is not bound, and the father is alone liable for it {d). If it be settled by the survivor of the father or mother in respect of paternal and maternal property, without specifying the portions, it shall be first taken from the rights of the intended spouse in the property of the deceased parent, and the residue out of the property of the parent making the settlement (r). It is deemed to have been made from the property of the settlors if there be no stipulation to the contrary, notwithstanding the daughter may have property in her own right, of which they have the usufruct (/). Interest on Dot. — Interest upon the dot is due from the day of marriage against those who have promised it, although a term be fixed for its payment, unless there be a stipulation to the contrary (g). Management of Property assigned in Dot. — The management of the property assigned in dot, and the right of suing those who are debtors in respect of it or who detain it, of enjoying the fruits or interest thereof, and of receiving reimbursements of the capital, vest in the husband alone during the marriage. But an annual sum may, b}' the marriage contract, be made payable to the wife, on her own receipt, for her personal expenses (Ji). The husband's right resembles that of a usufructuary, except that it is to l)e exercised not only in his own interest, but in that of his wife and the children of the marriage (0- Security. — The husband is not bound to give security for the receipt of the dot, unless it be so provided by the contract of marriage (./'). {<■) Code Civil, art. 1543. Cf. art. (,/') Jhii. Prescription of ImmnvalDles. — Immovables which are not by the contract of marriage declared alienable cannot be prescribed during the marriage, unless the prescription had commenced before the marriage, but they may be prescribed after separation dc tiiois at whatever period the prescription may have ])egun (ii). Obligations of Husband. — The husband, having the administration and management of the dotal property and being in the receipt of its fruits, is chargeable with all the obligations incurred liy an usufructuary, and responsible for all losses which have been occasioned Ijy his negligence (.r). If the property be in peril, the wife may sue for separation of property, as in the case of community (//). (/•) Code Civil, art. l.joS. Societe Gi'noralo r. (iiu'iianl et Jar(|Ue- (fi) Ihi'!., art. loJ9. Peo Ean.sac mart (15)01), C. Paris, Sircy. liK):), ii., V. Faugeras (I'JOO), Sirey, 1901, i., 65, 174. and nil. (!)—(()). (") Codo Civil, art. l.")t)l. (0 lOiil., art. l.>()0. Snnl'Ic, the (x) Il.i,/., art. \:,62. (t. arts. (JOO right to claim tlio nullity of the sale ef set/., 1382 — l.'JSo, loo."!, lo.'>(», loOT. of a dotal iinmovablo belongs cxclu- 1580, 2121, 2135. sively after the dissolution of tlio (_//) Jln'd., arts. 11 1. '5 and 15(>;). man-iage to the wife and her heirsi : JUGTITS TO DOT OX DISSOLUTION OF MARPJACE. r)53 Restitution of Dot. — The restitution of immovables and of movables not valued by the marriage contract or fixed at a just price, with a declaration that the valuation does not divest the wife of hci" })r()perty therein, is to be immediately made after the dissolution of the marriage (.-:). If the dotal property consist of a sum of money or of movables which have been valued by the contract at a certain price, without declaration that the valuation does not render tlio husband proprietor thereof, the restitution cannot be exacted until a year aftei the dissolution {■). (;.) Code Civil, art. 1.5()4. tion enacted by this article does not {<() Ihi'L, art. loiyb. '^PP'.V to tlie regime i). The husband, Avho enjoys the paraphernalia, incurs all the obligations of an usufructuary {q). SECTION IV. Donations betaveen Spouses. Donations between Spouses. — Coutnme of Paris. — The husband and wife are, by the coutiune of Paris, declared incapable of deriving from each other, hy donation, either intey civos or by testamentary disposition, or otherwise, any advantage, directl}^ or indirectly, unless it 1)6 b}^ such mutual or reciprocal donation as the law permits, and which will be presently stated. " Homme et femme conjoints par mariage, constant icelui, ne peuvent avantager I'un I'autre par donation faite entre-vifs par testament ou ordonnance de derniere volonte, ne autrement, (k) Potliier, Traite de la Puis., s. 81. (o) ////;■) Cout. Paris, art. 282 ; Piiivge, (.r) See \>. 576. Isted.,!., 30.S. (//) Art. 410; ]\fcrvilIo, p. Ill ; see (.s) Cout. Paris, arts. 280, 2S1, 282; post, p. J76. I'othier, Tr. des Don., s. 3."}. (2) ( 'out. Paris, art. 2s;} ; Purge,. (0 I'otliicr, Traite des Don., s. 49. 1st ed., i., ;JS>fl. [>i) Pnthi.T, IhhI., 8. 30. {a) r. C. of L.C, art. 771. MUTUAL DONATIONS— LAW Ol- (,>UEBEC. 557 Mutual Donations. — Tlie ckkIkiik' of Paris permitted a mutnal donation to be made, under certain restrictions. "Homme et femme conjoints par mariage, etant en sant^, peuvent et leur loist, faire donation nnituello Tun a I'autre egalement, de tons leurs biens, meubles et conquets immeubles, faits durant et constant leur mariage, et qui sont trouvez a eux appartenir et etre communs entreeux a Theure du tr(^pas du premier mourant desdits conjoints, pour en jouir par lo survivant d'iceux conjoints, sa vie durant seulement, en baillant par lui caution suttisante de restituer lesdits biens apres son trepas : pourvu qu'il n\y ait enfans, soit des deux conjoints, ou de I'un d'eux, lors du decrs du premier mourant " (h). Both the conjoints must 1)8 in health at the time the donation is made. The construction given by Duplessis to the expression ftaiit en sanie, in which Pothier concurs, is, that the donation is null, if it be made when the conjoint is labouring under a dangerous illness, although it may not have caused his death (e). The conjoints must have been married under the community of goods. The donation cannot be made if there 1)3 children, or if either conjoint has a child. The property, the subject of this donation, must be movable or conquets faits durant le mayiage. It is given to the survivor, and is enjoyed onl}^ for the life of such survivor, who must give sufficient security to restore it, and until the security has been given the donee is not entitled to the fruits {d). There must be an equality in the value of the property. There must be no such disparity in health or age as to render the probability of survivorship in any way unequal. It must be irrevocable, and any reservation inconsistent with its irrevocability renders the donation void {c). The don viutuel was required to be registered in four months from the day of the contract (/). The gift being made to the survivor of the two conjoints, it takes effect on the death of the one who first dies. The donee is not seised of it, but must demand it from the heirs of the deceased ((/). The property which is the subject of the gift is charged with the (h) Cout. Paris, art. 280. (e) Pothier, //-/V/., s. L50 d seq. (c) Pothier, Tr. des Don., s. LjL (,/') < 'out. Paris, art. 2S4. ((/) Cout. Paris, art. 285. {/ of an onerous contract, or may be in favour of an interposed person (o). Mere customary presents will not be treated as covered by tlie prohibition of art. 12(55 unless the_y are of a \'alue dispro[)ortionate to the fortune of the donor (p). And it is settled by numerous cases that a wife can renounce in favour of a third party her lep;al hypothec for her claiuis against her husband (7). It makes no difference whether her claim arises at common hiw or if it is in virtue of a marriage contract (r). And she may, equally, renounce an express lij^pothec in lier favour (s ). These decisions merely reaffirm tlie doctrine of tbe Roman law (/). Code Civil : Donations. — The Code has adopted not the prohibitions of the i-ontnuic, but the rules of the civil law on the subject of donations between husband and wife. The one conjoint may make a gift to the other of the whole of the property of which the law leaves him the power of disposing, but it is revocable at any time during the life of the donor, and the revocation may be made by the wife, without the authority of her husband or of a Court of justice {n). Mutual Donations. — The Code does not allow the mutual and reciprocal donation to be made by one and the same act. It pre- vents, therefore, any question, when one only of the conjoints had revoked the donation, and the other had afterwards died (.r). But it may be made on the same day by different acts (?/). (0) C. C. of L.C, art. 771 ; Norman- (Issl), 1 Dor. (i. B. :j.;7. din V. Arnois, ut supra; Carter /■. [t.) Cod., iv., L'i), 11 ; cf. I)ig. xvi., McCaffrey (1892), E. J. Q. 1 Q. B. <)7. i., s. {p) Eddy c. Eddy (T.S!)S), E. J. 1^. 7 {u) Code Civil, art. 1096 ; Burge, Q. B. 300 ; see [1900] A. C. 299. 1st ed., i., 401. (X I'ROPKRTY LAW OF FRAXCF. K H '. Disguised Donations. — It prohibits donations disgaised or made to intermediate persons (z). Donations b}^ one of the conjoints to the children, or to one of the children of the other, the issue of a former marriage, are deemed to have been made to intermediate persons, as well as those made b}^ the donor to a relation, to "whom the other conjoint is presumptive heir on the day of the donation, although the latter may not have survived his relation the donee (a). The question has been much discussed as to how far art. 1099 j-hould appl}^ ]joth the authors and the Courts have upheld the contention that the donations mentioned were not radically null, but valid in so far as they did not exceed the (piotitf (Usjyonihlr. A better system, viewed with greater favour by the Courts, strictly adheres to the text of the article and luiUilies all donations made in contravention thereof {h). Second Marriages. — Upon a second marriage the interests of the children of a former marriage are in danger of being affected by the new attachment which their i^arent has formed. The i^arent, on his second marriage, has, in some particulars which have been already noticed, been deprived of certain privileges which he would other- wise have enjoyed. Under the contumc he ceased, on such marriage, to be their guardian (c), and, under the Code Civil, the mother is dei)i-ived of the usufruct in their property {d). Restrictions on Disposition of Property on Second Marriage. — But the protection of the children is still more effectually secured by the restrictions to which the parent is sal)ject, in the disposition of his property on a second marriage. Those restrictions, which are borrowed from the civil law, M'ere imposed l)y the Edict of Urancis II., July, 1500, and the ('otilimu' of Paris (e). The Code Civil provides that " L'homme ou la femme qui, ayant ) Boisset r. Benoit (1884), Sircy. i.. 102. X.'), i., 112; I>emoloiii1)e, xxiii.. p. 717, CONVENTIONAL COMMUNITY AND SEPARATION OF PROPERTY. 561 legitime le moins prenaiit. et sans que, dans aucun eas, ces donations puissant exceder le quart des biens " (f). The children of the second marriage have, equally with those of the first, the benefit of the reduction of any donation which has been made in contravention of this restriction. But that part of the Edict which required the reserve for the children of the former marriage is not admitted into the Code {[/). The Civil Code of Lower Canada provides : " The prohibitions and restrictions respecting gifts and benefits bestowed by future consorts in case of second marriages no longer exist " (//). In St. Lucia the articles already cited (i), dealing with the con- tinuation of the community, lay down the law which applies in the case of the re-marriage of the survivor. SECTION V. Marriage Contracts. Marriage Contracts. — The parties may, subject to the restrictions which have already been noticed (ii), regulate by contract, on their marriage, their rights and interests in each other's property. The commentators on the French law have enumerated the principal provisions of which cojirentions matrimoniales m.ay consist. The Code has, with some few alterations, adopted them. The Commimaute Conventioimelle. — The parties may, by their matrimonial convention, modify the community established by the coutume or law. It is then called la commiinaute conventionnelle. Selection of Community under another Coutume Proliibited. — Under the coutume the parties might select the community established by the coutume of another country, but such a selection is prohibited by the Code Civil (j). This article was thought necessary in France, where the various coutumes had just been abolished by the Code. In the Province of Quebec there was no danger of persons electing to be married under the old law, and therefore the Code contained no provision corresponding to art. 1390 of the French Code. (/) Code Civil, arts. 1098, 1j27. (/) Ante, p. 532. {(j) Merlin, Eep. tit. Noces Secoiides, {ii) Ante, p. 478. s. 7, art, i., 8. (/)Code Civil, art. 1390; Burge^ {h) Art. 764. 1st ed., i., 407. M.L. 36 562 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. The Code of Lower Canada provides : " The consorts may modify the legal community by all kinds of agreements not contrary to arts. 1258 and 1259 " (h). That is, the agreement must not be contrary to good morals, or derogate from the authority of the husband as head of the family or the authority of the parents over the children. In practice there are only two regimes which are frequent. The parties marry either under the system of separation of property or under the system of community. But marriage covenants contain- ing one or other of the clauses enumerated in art. 1384 of the Qaebec Code and in art. 1497 of the French Code still occur. And in other cases the marriage covenants are of a special character not falling under any of these enumerated heads. The following are examples of the former class, which exclude the community : — Marriage sans Communaute. — The parties may stipulate that there shall be no community between them (/). Tnder this agreement the wife has no interest in any part of the husband's property, movable or immovable, which he acquires during the marriage, and she is not liable for any of the debts contracted by him (in). The husband takes no proj^erty in her estate, movable or immovable, but he is entitled to its fructus ad sustinejtda oncra inatrimoiiii, and on the dissolution of the marriage he must deliver to the wife or her heirs all the property which she brought at the marriage or during the coverture {n). Under this system the wife's revenues are not pay- able to her, but to the husband. But it may be agreed that she shall receive them in whole or in part for her support and personal wants (o). Immovables so excluded from the community are not inalienable. But they cannot be alienated without the consent of the husband or upon his refusal without judicial authorisation {p). Clause of Separation de Biens. — Not only may the community be [k) Code Civil, art. 1U84. with wliicli it was acquired, but the {1) Burge, 1st ed., i., 407 ; Pothicr, husband's heirs may prove that it was Tr. de la Com., s. 461 ; Code Civil, art. acquired with his money: Goulard v. ]5'29 ; C. C. of L.C., arts. 1416—1421. Goulard (1897), Siroj-, 1901, i., 491. (m) Art. 1530. (o) Code Civil, art. luiJ4 ; Civil Code, {n) See art. 1.5:jl. Such property L.C., art. 1420. belongs to the wife even if there is no {p) Code Civil, art. 1 J3o; Civil Code, indication of the source of the money L.C., art. 1421. CLAUSE OF sA'FAnATIoy BE UIEXS. 563 excluded, but it may be agreed that each shall separately enjoy his or her ijroperty. The wife under this clause retains the manage- ment of her estate movable and immovable and the free enjoyment of its income, but she cannot alienate it without the authority of her husband or that of the Court {q). The system of separation of property between the consorts is becoming very common in the Province of Quebec. In Mauritius this is the mode which prevails now almost in all cases. In order to exclude community and its incidents, the conjoints must expressly declare their intention to be married either without community or with separation as to goods. The non-communante is little known in Mauritius. Under this system each of the conjoints contributes to the expenses of the married life according to the covenants contained in their marriage contract. If there be none on this head it was left, under the coutume, to the discretion of the Court to determine the proportion to be contributed by the wife, but the Code has fixed that amount at one-third of her income {r). By the law of Quebec the old rule is retained. If the marriage covenants are silent and the parties cannot agree, " the Court deter- mines the contributory portion of each consort according to their respective means and circumstances " (s). The following are usual modifications of the legal community : — La Communaute reduite aux Acquets. — It may be stipulated that the community shall consist of acquisitions (t), or of a part only of the present or future property, or that on the decease of the conjoint his heirs shall take a third or a fourth part in the community {ii) ; and this may be stipulated for by parties marrying under the regime dotal (v). The system of community reduced to acquests is common at the ((/) Pothier, ibi'(i., s. 464 ; Code Civil, dent) ; Lecocq f. Ciuquiii(1900), Sirey, arts. 1536, 1537, 1538 ; C. C. of L.C., 1900, ii., 121 (literary property); arts. 1422 — 1425. Cinquin t.'. Lecocq (1902), Sirey, 1902, (?•) Code Civil, art. 1537. i., 305. (s) C. C. of L.C., art. 1423. («) Burge, 1st ed., i., 407 ; Pothier, [t) SeeEiobe v. Eiobe (1890), Trib. Tr. de la Com., s. 449; Code Civil, Nantes, Sn-ey, 1891, ii., 71 (lottery art. 1497; C. C. of L.C., art. 1384. prize) ; Perriu v. Synd. Yezien (1897), (y) Code Civil, arts. 1498, 1499, Sirey, 19U0, i., 521 (damages for acci- 1581 36—2 564 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. present time in France, but is rarely or never met with in the Province of (^)aebec. It was formerly frequently met with in Mauritius. Clause of Separation de Dettes. — It may be agreed that the com- munity shall not be charged with any debts contracted or due by either conjoint before the marriage. The debts contemplated by this provision are those owing not only to third parties, but by one of the conjoints to the other, and those which, although due before, are not payable until after the marriage (x). The effect of this agreement for separation of the debts is that the community is to be reimbursed by the conjoint whose debts, contracted before the marriage, have been paid by means of its funds. "When the debts are those of the wife, her creditors may proceed against the husband, unless previous to the marriage an inventory was made of the movable effects brought by the wife. If such inventory has been made, he will be discharged from his liability on giving up to them those effects or their value {y). Whether Clause will Bar Hushand's Creditors. — When it is the husband's creditors who sue, can he plead against them an agree- ment for separation of the debts and produce an inventory of the movables brought by him into the community ? This is a difficult and controversial question. Most of the old writers held that the clause of separation of debts could not be pleaded against the creditors of the husband. They reasoned — (1) that during the community the law makes no distinc- tion between the funds of the community and the movable estate of the husband ; (2) that as head of the community the husband has absolute control of its administration, and, as he can give it away, he can surel}^ be compelled to pay his debts out of its funds ; (3) that no one is entitled to take the plea : not the husband, for he cannot deny his complete control of the community, nor the wife, for during the marriage she has no rights in the community at all (z). And this view is supported still by writers of high authority (a). (.''•) Pothier, t7//fZ., 8. 353; Code Civil, ch. iii., s. iv., ii. 2; Bourjon. Dr. art. 1510; C. C. of L.C., art. i;J9(3. Com. de la France, ed. 1747, i., p. (y) Cout., art. 222; Pothier, ibid., 481, nil. 9 and 10. And see other 8.362; Code Civil, art. 1510; Burge, authorities in Pandectes Fram.aises, r. let ed,, i., 408. Mariage, Nos. 6981 et se(j. (z) Lebrun, Tr. do la Com., liv. ii., («) Guillonard, Contrat do jMariage, THE CLAUSE OF FHAXC Kl QVITTK. 565 On the other hand, it is maintained (1) that art. 1510 of the French Code and art. 1396 of the Civil Code of Lower Canada, which is identical with it, make no distinction as to this matter between the creditors of the husband and those of the wife ; (2) the wife is entitled at the marriage to stipulate that the movables she brings into the community shall not be liable to be dissipated in paying the husband's antenuptial debts; (3) the clause of separation of debts is intended for this purpose. It leaves the husband's creditors as well off as they were before the marriage and it is not contrary to public policy (^). In the Province of Quebec the language of the Commissioners who prepared the Code confirms the view that no distinction is intended to be made between the case of the husband and that of the wife. They say : " Between the parties, it matters little wdiether there be an inventory or not ; as regards them, the clause has its effect in either case. With respect to third parties, the case is different ; if the movable property contributed by each consort have not been specified by an inventory or other equivalent act, the creditors are not bound to take cognisance of the clause of separation of debts ; they may enforce their claim upon the movable property of the consorts as if such clause did not exist " (c). The Clause of Franc et duitte. — Another agreement called the convention de frcDic et quitte is that by which it is declared that one of the conjoints is free and clear from all debts anterior to the marriage. Under the Coutume. — Under the coutnme it was considered that this agreement Avas binding not on the husband himself, but only on his parents (J). Under the Code Civil. — The Code has adopted a more just principle. It gives the other conjoint an indemnity either from that portion in the community to which the debtor is entitled, or from his hiens propres, and in case of those means being insufficient, it permits the w^arranty to be enforced against the father, mother, 3rd ed., iii., n. 1589, and authors cited Coiutois et Sui'ville, Contrat de by him; Plauiol, Traite Elementaire Mariage, 2ud ed., ii., u. 1360. de Dr. Civ., iii., n. 1133. (c) Com. Eep., ii., p. 231. {h) Laurent, xxiii., n. 308; Hue, {d) Pothier, ibid., s. 3G5 ; Burye, ix., u. 380 ; Baudry-Lacantinerie, 1st ed., i., 408. 566 EFFECT OF MARRIAGE OX PROPERTY LAW OF FRANCE. ETC. ancestor, or guardian who shall have declared such party franc et quitte (e). The law of Quebec is the same. The Code of Lower Canada speaks of the " parties who made the declaration " (/) instead of the "father, mother, ancestor, or guardian " of the French Code. But, even in France, it is admitted that the enumeration is not limitative. The declaration ch' franc ct dc quitte Ynay he made by a stranger (7). The Clause of Inequality of Shares, — The parties may stipulate that, instead of each taking a moiet}^ the one shall take a third and the other the residue (//). "SYhen there is this inequality in their shares, the liability of the one in the rtc^//' corresponds with his interest in the jx/ss//' of the community. An agreement by which one is to bear a part en actif greater than that which he took in the j)ass(/' of the community is void(/). It may be stipulated that the wife shall receive a certain sum for all her rights in the community. The husband is bound by such stipulation to pay the sum, whatever may be the state of the community (J). If it contemplates the wife's heirs, it applies only to the case of a dissolution of the community by her death and not to its dissolution by the death of the husband {k}. When the husband or his heirs by virtue of the stipulation for that purpose retains the entirety of the community, he is alone liable for all its debts, and no action can be maintained against the wife or her heirs (/) . The wife who, in consideration of a sum agreed upon, has the right of retaining the whole community against the heirs of the husband, may elect either to pay them such sum, becoming bound (e) Ai-t. lol;3. See art. 1J14 and 1st td., i., 408. Pointraud r. iJuunizeau (1902), Siiey, {i) i'othier, Tr. dc la Cum., s. 410; 1903, i., 313, and nn. (1), (2), (3), as Code Civil, arts. 1.320, 1.321 ; C. C. of to the clause de reprise (Vaiiport franc L.C., arts. 1400, 1407. et quitte and third parties. (,/) I'othier, y7'/(/., s. 4o0 ; Code Civil, (/) Art. 1399. arts. 1520, 1.322 ; C. C. of L.l'.. art. [g) Baudry-Lacantinerie, Precis de 140S. Dr. Civ., iii., n. 291; Planiol, M., (A) Ibid.; C. C. of L.C., art. 1409. Traite Elementaire de Dr. Civ., iii., (/) Code Civil, arts. 1,520, l.')24 ; C. C. n. 1142. of L.C., art. 1410. (A) Code Civil, art. 1520; Uurjie, LA COXVEXTIOX DK It KALISATIOX. 567 for all the debts, or to renounce the community and abandon the property and charges thereof to the heirs of her husband {m). La Convention d'Apport. — It may be agreed that the parties shall contribute a certain sum to the community. Tbis is called la convention (Vapport {n). The effect of this stipulation is an exclusion from the community of all the movable property of the conjoint which exceeds the amount stipulated to be contributed, and the conjoint takes, on the dissolution of the community, that excess (»). The conjoint is the debtor to the community in the amount agreed, and must prove the contribution he has made in discharging it (o). The declaration contained in the marriage contract that the husband's movable property is of such value affords sufhcient proof of the contribution made by him, and the acquittance given by him is sufficient proof of the contribution by the wife {p). The Civil Code of Lower Canada has an additional provision for the benefit of the wife. " If such contribution be not claimed within ten years the wife is presumed to have made it ; saving the right of proving the contrary" {q). La Convention de Realisation. — The parties may by their agree- ment exclude from the community the whole or a part of their movable property by declaring it to be propre ; this is called under the coutiuiie, la Convention de Uealisation (r). This realisation is express or implied. When the parties declare that the whole or a part of the movable property shall be propre, the realisation is express. The convention cVapport is a tacit or implied realisation (.s). The Code Civil adopts the principles of this convention in art. 1500, but it does not designate it hj the same terms {t). In the Code of Lower Canada, which is to the same effect, this kind of agreement is called the " clause of realisation " (^O- (m) Code Civil, art. 152-4; C. C. of (;■) Burge, 1st ed., i., 410; Pothier, L.C., art. 1410. Tr. de la Com., s. 315. (h) Burge, 1st ed., i., 409 ; Potliier, (s) Pothier, iJnd., s. 316. ihiii, s. 287; Code Civil, arts. 1500, {t) The Code describes it as "La 1503 ; C. 0. of L.C., art. 1385. clause qui exclut de la communaute le (o) Art. 1501. mobilier en tout ou partie." {p) Code Civil, art. 1502 ; C. C. of (/;) Art. 1385. See Veronneau v. L.C., art. 1387. Veronneau (1893), E. J. Q. 3 S. C. {q) Art. 1387. 199. 568 EFFECT OF MARRIAGE OX PROPERTY LAW OF FRANCE, ETC. This agreement excludes from the conventional community that which would have formed part of the legal community. It is a disi^uted point in the Province of Quebec whether the clause of realisation deprives the husband of the right to alienate such propres. This clause is recognised in St. Lucia (r). According to many commentators on the French Code a distinc- tion has to be made between propres parfaits and propres imparfaits. Propres imparfaits are (1) movables qiue ipso tisit consiumintnr ; (2) movables which deteriorate by use, or are destined to be sold, e.g., animals reared to sell at a certain age ; (3) articles on which a value is fixed when they enter the community. In regard to the two first classes, it is clear that the community or the husband cannot have the usufruct of them unless he has the i^ower to alienate. And as to the third class, the value indicates that the community is only to be the debtor for the equivalent sum (w). Propres parfaits are incorporeal movables, such as stocks and shares. Of such movables the community can enjoy the usufruct by the husband taking the revenues. Tbe old law did not make this distinction, because in the old law such propert}^ had not come to be of imj)ortance {x). The articles of the Code of Lower Canada, 1385 — 1389, reproduce very closely the articles of the French Code, 1500 — 1504. In one case, in which there was an equal division of judicial opinion, the marriage covenants had declared that all that should fall to the wife by way of succession should be propre. A sum of money fell to her under the will of her father. It was seized in tbe hands of the executor by a creditor of the husband. It "was held that the seizure was valid. Such a sum would be a propre imparfaii. But the majority of the Court of Eeview repudiated the distinc- tion made by the modern French law between propres parfaits and propres imparfaits {y). (f) C. C. of St. L., arts, laol d S((/. et Surville, Contnit do Manage, i., [iv] Baudry-Lacantinerie, Courtois u. ~o\). et Surville, Contrat do Mariage, ii., (//) Vcrouneau ?\ Veronneau (1893), n. 1331 ; i., ii. 759. E. J. Q. 3 S. C. 199. See Migiiault, (.<■) liaudry-Lacantiiieric, Courtoid Droit Civil Cauadien, vi., p. 3oU. THE CLAUSE OF PllECIPi'T. 569 The Clause d'AmeuWissement. — Tlie parties may make a stipula- tion of a directly contrary eti'ect, for they may agree that the whole or part of their innnovable proj^erty shall be deemed movable, and thus that the conventional community shall consist of that which would have been excluded from the legal community. This is called la conventum iV ameuhlisscment, and the property is called propres ameuhlis [z). It is called in the Code of Lower Canada the " clause of mobilisation " ((()• In St. Lucia the clause of mobilisation is also recognised {h). In these systems the clause may comprehend all or part of the immovable property, and is either dHerminv or indi'terininc {z) : determine when the party agrees that such a particular estate shall be deemed movable and form part of the community, either for the whole estate or to a given sum (z) ; indeterminf' when it is agreed that immovables are brought into tlie community to the amount of a certain sum {z). When the immovables of the wife are rendered wholly movable the husband may dispose thereof as of the other effects of the commmiity and alienate them entirely (c). If the immovable is only rendered movable for a certain sum the husband cannot alienate it without the consent of his wife, although he may pledge it without her consent, but to the amount only to which a portion is rendered movable {d). When the (imcidjlissenient is indHermine the community does not become proprietor of the immovables, but the conjoint who has made the (uncidjlhsement becomes a debtor to the community, and on its dissolution must bj'ing some of his immovables to the amount promised (e). The husband cannot, therefore, alienate in whole or in part without the consent of his wife the immovables of which the ameiihlissemcnt had been indi'terminr, but he may pledge them to the amount to which they have been made movable {e). The Clause of Preciput. — The parties usually stipulate that they shall (2) IhiiL, s. 31J ; Code Civil, arts. (c) Code Civil, art. 1507. 1505, 150G ; C. C. of L.C., art. 1393 ; {d) Hid.; C. C. of L.C., art. 1393. Burge, Ist ed., i., 410. (e) Code Civil, art. 1508; C. C. of (a) Art. 1390. L.C., art. 1394; Burge, 1st ed., i., 411. \h) Arts. 1301—1310. 570 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRAXCE, ETC. take, J)!!]- prccipiit, certain specific articles. ThetGYin prcciptit signifies being separated from the other eft'ects of the community on its dissolution, and being, in the first instance, deliverable to the party entitled to it. The precipiit generally consists of those articles which are adapted to the habits or sex of the party, as library, carriage, horses, &c., of the husband, or the ornaments, &c., of the wife. They may be estimated at a certain sum, which may be constituted the prcciput. It was considered that the amount or value of the preciput might be reduced by the authority of the Judge if it exceeded the station and fortune of the jjarties. The Code, however, has not vested any Court with this discretionary power (//). Not Available for Separation from Bed and Board.— The reserva- tion of this prcciput does not, under the cotitumc or Codes, prejudice the creditors of the community, for it is competent for them to seize the property. The party entitled to it has his indemnity (//). The preciput cannot be claimed when the community is dissolved by divorce or separation de hiejis{i). It opens hj the natural death of the consort unless otherwise stipulated. Moreover, the consort whose fault is the ground of the separation from bed and board loses the right to the prcciput {j). Wife's Legal Hypothec. — It may be mentioned here that the character of legal hypothecs is assigned to the claims of married women upon their husband's property (/,), and a hypothec exists without registration in favour of wives for their dowry and matri- monial contracts upon their husband's immovables counting from the day of marriage (/). In Quebec and St. Lucia married women have a legal hypothec {()) Pothier, Tr. do la Com., s. 441 ; Liiciuitiiierie, Precis de Droit Civil, Toullier, tit. 5, c. 2, p. 1, s. 3, n. 407 ; i., ii. 791 ; Plauiol, M., Traite Elem. Code Civil, art. l;Jl,j ; P.urgo, 1st od., do Dr. Civ., iii., ii. Gu8 ; Civil Code i., 411. of L.C., art. 211. {h) Burge, Ist cd.,i.,412; Bourjon, (/,•) Code Civil, art. 2121, e.//. arts. Droit Comm,, tit. De la Com., p. ;j, 1421, 1472, 14i)o, lo.'Jl, \oo\), IJGO, s. 1, nil. 9, 10; Code Civil, art. loU); 15(J4, 1579. C. C. of L.C., art. 1405. (/) I hid., art. 2135, subject, however, (/) Pothier, Ti-. de la Com., s. 441 ; as regards luiregistered hypothecs, to Code Civil, art. 151S. art. 2193. [j) Code Civil, art. 1518; Baiidry- CHANNEL ISLANDS — MUTUAL RKiHTS OF SPOUSES. 571 for all claims and demands ^Yllich they may have against their husbands on account of what they may have received or acquired during marriage by inheritance, succession, or gift (ni). The law of St. Lucia with regard to matrimonial contracts is similar to that of Quebec (n). SECTION Yl. Law of Channel Islands. Coutuine of Normandy. — Channel Islands. — The Cuutuiiw of Nor- mandy, with later statutory and other modifications, is still the law of the Channel Islands on this subject. Mutual Rights of Spouses during Lifetime of Both. — Jersey. — (a) By the law of Jersey a married woman has no separate estate. Her personalty, from the time of her marriage, becomes the property of the husband, who alone can deal with it as he thinks proper. With regard to her realty, the husband has the enjoyment of it, but he cannot dispose of such realty, or any portion thereof, without the wife's consent. During the coverture the law of Jersey, presuming that the husband has all the funds, charges him with all the liabilities. But means have been provided for giving the wife separate property. In 1878, an Act was passed by the States of Jersey, and confirmed by His Majesty in Council, intituled " Loi sar les separations de hiens ciitre epoux.'" This law in effect gives to the wife the administration and disposal of her estate, both real and personal, in the same manner as if she were a feme sole. Separation de iiiois is eftected in Jersey not by way of mar- riage settlement, but by a proceeding in Court. The husband and wife appear in Court, and, on the motion of counsel, a decree for a separation quant aux hiens is granted provisionally. The decree is then posted in the Court-house for 15 days, by way of notice to creditors and others interested in opposing the separation. If such persons appear they are heard in (m) O.C. of L.C., art. 2029; St. 1300—1338. Lucia, art. 1919. (a) Pari. Eep. (Jersey), 1860—61, (?i) See C. C. of St. Lucia, arts. pp. xxvii., xxviii. 572 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. opposition ; if not, at the end of the 15 days, the decree is confirmed as of course. The effect of the decree is to place the whole of the real property of which the wife is at the time seised, and all her subsequently acquired pro- perty, entirely under her own control (with power to sue and be sued as a feme sole), and beyond the reach of the debts and engagements, present or future, and of the interference of her husband (h). The wife can also claim in the Royal Court a separa- tion quant aux hiens on account of cruelty or adultery. This is of course a distinct proceeding from the separation a mensd et toro granted for adultery by the Ecclesiastical Court, and which affects the persons, not the property of the married couple. If the husband admit the facts on which the wife's application is grounded, the separation is granted at once ; if not, the case is sent to proof, and passes through all the stages of any other contested suit. Alimony pendente lite may be granted (c). After a separation quant aux hiens the husband retains his liability to maintain his wife at all events, if she fall into such poverty as to become a charge on the poor rate. Separation de hiens does not deprive the husband of movable property left by the separated wife on her death without issue ((/). Prior and even subsequentl}' to the law of June 24th, 1851, which created a limited power of devising real estate by will, separations quant aux hiens were frequently resorted to for the purpose of effecting family arrangements which were not directly feasible under the existing law, and yet which would not be obnoxious to the rule prohibiting the conveyance of real estate by a husband to the wife stante niatrinwnio {e). (6) See Broomer r. Artliur, [1898] de Dec, 189-1— 1900, p. 77; lure Davis A. C, at p. 779. (1895), Table do Dec, 1894—1900, (c) De Garis v. Blampied (1891), p. 77 ; Tresorier dos Etats c Quenault Table de Dec, 1889—9;}, p. 90 ; Fauvel (1898), ihid. But a wife, siii juris by V, Eenouf (1893), ilnd. tlio law of her owu domicil, may ester ((/) Slous V. Mauger (1904), Table in Jtisike iu Jersey : Brissonniere r. deDec, 1901— 07, p 178. A married Biissonuiere (1901),Tablede Dec, 1901 woman not sejiarated cannot contract : — 07, p. 90; De Osko r. Jugla (1903), Lambert c. Bouteloup (1889), Table do ilnd.; McGrath r. McCauu (1904), Dec, 1889— 9;J, p. 03; Yvon v. Do Hid.; Hall c. Maire (1905), //^iV. VeuUe (1890), ilnd.; Lo Gros v. Le (() I'arl. Bop. (Jersey), 1860-61, Gros (1892), t6jV7. ; or sue or be sued : pj). xviii., xix. ; and of. Broomer t'. Ex parte Lo ]5uutillier (1900), Table Arthur, [1898] A. C. 777. CHANNEL ISLANDS AVIFE's DOWER. 573 Guernsey. — The luisband acquires by marriage the wife's personal estate both belonging to her at the date of the marriage or acquired during coverture, unless otherwise settled by marriage contract. He has the enjoyment of his wife's real property during their joint lives. The English Married Women's Property Acts are not registered in Guernsey, and there is no Act similar to these. Rights of Surviving Spouse. — Wife's Dower. — The douairc of the wife under the roiitiDite of Normandy differs from that which prevailed under the coutume of France, in several respects. It is given by the following article : " La femme gagne son doiiaire au coucher, et consiste le douaire en I'usufruit du tiers des choses immeubles dont le mari est saisi lors de leurs epousailles, et de ce qui lui est depuis echii constant le mariage en ligue directe, encore que lesdits biens fussent echus a ses pere et mere, ou autre ascendant par succession collaterale, donation, acquets ou autrement " {/). It consists of the usufruct of one-third only of the immovables mentioned in the above article. The wife's right was acquired not by the nuptial benediction alone, but it was necessary for her etre entree dans le lit nuptial du mari. It is due only from the day on which it is demanded (g). If the father, or grandfather, of the husband have consented to the marriage, the widow will be entitled to her douaire out of the immovables of the father, or grandfather, although they may not have descended until after the death of the husband {h). The douaire conventionnel may be less, but it never can exceed a third (i). The husband cannot, by the renunciation of the succession, prevent the wife from recovering her douaire from it (j). The children take the property, or inheritance, in the third of which the wife takes the usufruct (A). Jersey. — The law of Jersey (/) has preserved dower in the form in which it existed under the old law of Normandy, namely, that the widow was entitled to take dower on all the real property that her (/) Burge, 1st ed-, i., 390; Cout. [j) Cout. Normaud., art. 380. Normaud., arts. 367, 368. (k) Ihid., art. 400. (r/) Cout. Normand., arts. 369, 371.' (0 Pari. Eep. (Jersey), 1860—61, (/i) Ihid., art. 371. p. xv (0 Art. 371. 574 EFFECT OF MARRIAGE ON PROPERTY LAW OF FRANCE, ETC. husband i)ossessed at the time of tlie marriage, and Hke^Yise on all property that falls, or would fall to him by inheritance in a direct line. But the widow has another privilege in Jersey which she did not possess by the old Norman law, that of taking, if she chooses, her dower on all the estate that ihe husband possessed at the time of his death. If she elects to take the former, she must declare her intention so to do before the Royal Court within forty days of her husband's death. In that case she is not entitled to any share in her husband's personal estate, and she does not then become liable for any of the debts. The real property of the husband cannot be freed from this liabilit}^ even by sale, except ^Yith tbe consent of the wife, expressed in the deed of sale and acknowledged by her before the Royal Court. In default of a declaration by the wife to take her dower under the old Norman law, she takes it out of the property of her husband at the time of his death. In this case she is entitled also to a third of his personal estate, and becomes liable for her share of the debts, so that if the personal estate has been exhausted in the payment of his debts, and any debts remain unpaid, she is liable to keep down the interest of one-third of those which remain undischarged. In either case her dower is one-third of the estate out of which it is dowable. Her third is sometimes assigned to her by private arrangement ; but the usual mode is that the widow sends a summons to the principal heir to deliver her dower and the parties are sent before the Greftier for this purpose. The principal heir furnishes a list of the property upon which dower is due ; the widow divides it into three portions ; the heir then selects two of them, leaving the remaining third for the widows who is thus interested in making a fair division. If there be children the wife has a right to one-third of the husband's ])ersonal estate, and if there l)e no children, to one-half of such estate. Guernsey. — The wife's dower is the life enjoyment of one-third of the husband's real property, and this she does not forfeit by marrying again. The widow's Icgitiiiie of her husband's personal property is, one- third if he leaves issue, one-half if there is no issue {/;/)• Rights of Husband.^ — Coutume of Normandy : Droit de Viduite. — The coiituincoi Normandy gives to the husband, if there has been a child {rn) Carey, Inst, of Guernsey, 124, 131, i;}2, i;34, IGC, 167. CHANNEL ISLANDS — b'RAXC VEUVA(ri:. 1)7 bom alive of his wife, the enjoyment for his life, so long as he remains a widower, of all the income which belonged to his wife at the time of her decease, notwithstanding the child may have died before the dissolution of the marriage. If he marries again, he is entitled to the usufruct of only one-third. " Homme, ayant eu enfant ne vif de sa femme, joiiit par usufruit tant qu'il se tient en viduite de tout le revenu ap^Dartenant a sadite femme lors de son deces, encore que I'enfant soit mort avant la dissolution du mariage, et s'il se remarie, il n'en joliira que du tiers " (»)• This interest of the husband is called droit de viduite. Jersey : Franc Veuvage. — The " Franc Yeuvage " of the husband corresponds with the estate by the curtesy in the law of England. If there has been issue of the marriage, the widower is entitled to the usufruct and enjoyment of all the real property which his wife had in possession at the time of her death, but only so long as he remains unmarried. If he marries again, he forfeits the enjoyment of the property. It was held by the Privy Council in the case of Lempriere v. Vibert{()), that this droit de viduite of the husband was not forfeited by a separation quant aux hiens at the request of both husband and wife, as regards pro- perty possessed by the wife previous to the separation. The Judicial Committee, however, expressed no opinion as to the effect of a separation quant aux hiens obtained otherwise than upon the joint request of husband and wife, or of a separation de coips ; or as to the consequences of a separation quant aux hiens as regards the husband's interest in property acquired by the wife after the separation. With regard to the wife's personal estate (which she can only possess if the parties are " separated ") it goes to her children, and if there be no children, to the husband. Assuming that the wife is not separated " quant aux hiens,'" she can dispose of her property, inter vivos, with the consent of her husband, but she cannot dispose of it by will. If the wife be separated, she can dispose of her real and personal property by will, in the same manner as if she were nfenie sole. Guernsey. — The husband has the enjoyment of the wife's real (?0 Cout. NormaacL, art. 382 ; {<>) (1862), 10 W. U. 87U. Burge, Isted., i., 391. 576 EFFECT OF MARRIAGE ON PROPERTY — LAW OF FRANCE, ETC. property after her death, if there is issue of the marriage, but so long only as he remains unmarried. If there is no issue, the wife has the power of disposing, by will, of her realty. "Where she has the power of disposing of her personalty the children's legitime is one-half (_2>). Donations between Spouses. — Coutume of Normandy. — The coutume of Normandy contains the same prohibition as the coutume of Paris, but it does not permit the don mutuel. " Gens mariez ne se peuvent coder, donner, ou transporter Tun a I'autre quelque chose que ce soit, ni faire contrats ou concessions par lesqnels les biens de I'un viennent a I'autre, en tout ou partie, directement ou indirectement " (q). Jersey. — By the law of Jersey a conveyance of real estate by a husband to his wife, stante matrimonio, to the prejudice of his lawful heirs, is invalid (;•). Where, however, by deed of family arrangement, it appeared that a husband and his wife, separated (fiant ((u.r hieus, each took from her father (subject to a charge of an annuity in his favour) a conjoint interest in the settled lands during their joint lives with the chance of the fee on survivorship, the Judicial Com- mittee held that the deed was in no sense a conveyance by the husband of any interest acquired by him thereunder, and that on his death before his wife his interest ceased and could not pass to his heirs (s). Authorities. — Burge mentions as references for this subject the following works on the Communaute Legale and Convcn- tionnelle under the Coutume of Paris : — Pothier, titles " Du Contrat de Mariage," " De la Puissance du Mari," and " De la Communaute" ; Poullain du Pare, " Sur la Coutumes Generales de Bretagne " and " Principes du Droit Francais " ; Eenusson, Lebrun, Dumoulin, Ferriere and Duplessis ; Le Maistre on the " Coutume of Paris " ; D'Argentr^, " Sur la Coutume de Br6tagne"; Brodeau, "Sur Louet," the title " De la Commu- naute," in the lOtli vol. of the works of Pothier by M. Dupin ; under the Coutume of Normandy, Basnage and Mervile ; on "Le Piegime de la Communaute," under the Code Civil, liv. 1, {2>) Carey, In^^t. of Guernsey, 120, (r) Broouier r. Arthur, [1898] A. C. 166, 167. 777. {q) Cout. Noraiand., art. 410 ; (s) Brooiuer r. Arthur, [1898] A. C. Burge, 1st ed., i., 398. See p. 556, ante. 777. JERSEY. 577 tit. 5, and liv. 3, tit. 5, of the Code, and this title in TouUier, in the 12th and 13th vols, of his " Droit Civil Francais," and the " Traite de la Communaute des Biens entre Epoux," by B. Battur ; on " Le Douaire Coutumier," and " Gonventionnelle," the articles in the Coutumes of Paris and Normandy, and the i^receding commen- tators ; on " Le Regime Dotal " of the Code Civil, liv. 3, tit. 5, cc. 1 and 3 ; TouUier on that title in the 14th vol. of his works ; Carrier, " Traite sm* les Engagemens, &c. " ; on " Donations entre Mari et Femme," the articles on that title in the Coutumes of Paris and Normandy, and the above commentators ; Ricard, on the title " De Donations du don Mutuel," liv. 3, tit. 2, c. 9, of the Code Civil, and the " Commentary " of TouUier, in the 5th vol. of his works ; Grenier, " Traite des Donations des Testamens, &c." ; Duranton, " Coursde Droit Francais, &c. " ; on " Second Marriages," those titles in the Coutumes of Paris and Normandy, and the above commentators ; the dictionaries of Pienisart and Merlin, on these several titles, and on those of " Acceptation de Communaute," " Avantage," " Aport," " Ameublissement," " Conquet," " Confiscation," " Domicile," "Douaire," " Noces," " Propres," "Reparations," "Realisations," "Recompense," " Societe d'Acquets,". "Usufruct." To these may be added Guillouard, " Traite du Contrat de Mariage " ; Baudry- Lacantinerie, Courtois Surville, " Contrat de Mariage " ; " Pan- dectes Frangaises, y. "Mariage," where see especially the bibliography at the end. M.L. 37 CHAPTER XI. EFFECT OF MAKKIAGE OX THE PROPERTY OF HUSBAND AND WIFE — CONTINENTAL SYSTEMS. The provisions of the other Continental systems, such as those of Italy (and Malta), Spain, Germany, Austria, Hungary, and Switzer- land, with regard to the marriage property regime, may next be noticed. SECTION I. Law of Italy and Malta. Italian Law. — The French systemof community of goods was foreign to Italian custom, and while Italy in the early part of the nineteenth century was under French dominion it became a general habit to exclude the statutory regime of the Code Napoleon by marriage contract. The Codes which subsequently were introduced in various parts of Italy did not establish any statutory regime, but allowed the system of community of goods to be adopted by marriage con- tract, subject, however, in the case of the Sardinian Code, to the restriction that no community of a more extensive kind than the community of income and profits (comnnione dcgli ntili, communaute rediiite aux acquets) was to be lawful. In the memorandum accom- panying the draft of the Civil Code of the kingdom of Italy it was stated that, as a matter of fact, contracts subjecting the spouses to the regime of community of goods were quite unknown in Italian practice. Like the Sardinian Code, the new Code forbids the adoption of any system of community of goods going beyond the community of income and profits, but allows the last-mentioned kind of community as well as the " dotal regime " to be provided for by marriage contract. In the absence of a marriage contract the spouses live under the system of separation of goods. The dotal rrgime is the one usually adopted in Italy. Marriage Contract. — Form and Capacity. — As under French law, a DOTAL BEGIME. 579 marriage contract must be evidenced by public act before a notary before the celebration of the marriage, and no modification agreed upon at any subsequent time is effectual (a). The following kinds of stipulations are forbidden under Italian law : (1) Stipulations by which the rights of the head of the family or certain specified rights conferred by law on the husband and on the wife respectively are in any way modified ; (2) stipulations by which the rules as to intestate succession are modified ; (3) stipula- tions referring in general terms to any local law or to any system of law to which the spouses are not subject {h). As under French law, an infant capable of marrying is also deemed capable — with the assent of the person whose assent is required for his or her marriage — to enter into a valid marriage contract and to make any disposition of property which can be pro- vided for by any such contract (c). A person against whom a judicial restriction of capacity on the ground of mental debility or prodigality has been applied for or obtained cannot enter into a valid marriage contract without the assent of his curator {d). The main features of the two kinds of regimes are next con- sidered. (1) Dotal Regime. — The dotal regime resembles the dotal regime of French law\ Under that regime the wife's property consists partly of her " dowry " {dote), being the property intended to provide for the wife's share in the joint expenses, and partly of her paraphernal goods {heni 'parafernali) , being the wife's privileged property. Any property to which the character of " dow^ry " is given by the marriage contract has to be dealt with as such. As under French law, the dowry may be provided for by the wife herself, or by any third party, including the husband, and may consist of the whole or of any aliquot part of the wife's existing or after-acquired property, or of any specific objects. A stipulation that all the wife's property is to be dealt with as her dow'ry is, however, presumed not to refer to after-acquired property (e). A dowry constituted for a first marriage is not deemed to be tacitly reconstituted in the event of a subsequent marriage (/). Other articles of the Code relating (a) Code Civil, arts. 1394, 1395; Civile, art. 1386. Codice Civile, arts, 13S2— 1385. (r/) Codice Civile, art. 1387. [l] Codice Civile, arts. 1379—1381. {e) Codice Civile, arts. 1388, 1839. (c) Code Civil, art. 1398 ; Codice (/) lUd., art. 1390. 37—2 580 EFFECT OF MARRIAGE ON PROPERTY — ITALIAN LAW. to the constitution of the dowry reproduce those of the French Code(g). Husband's Powers as to Dowry. — The property forming the dowry comes into the husband's possession and under his management. The rules on this subject are very similar to those applicahle to the legime dotal under French law, and many sections of the Italian Code dealing with this matter are literal translations of the corresponding sections of the Code Civil (//)• The principal differ- ences are the following : (1) Under French law the husband cannot be required to give security for the wife's dowry unless this is expressly provided for in the marriage contract. Under Italian law a judicial order requiring security may in certain specified events be obtained on the wife's application (t). (2) Under French law no immovable property forming part of the dowry can, in the absence of an express provision to the contrary in the marriage contract, be sold or mortgaged, even with the concurrence of husband and wife, except for certain specified purposes ; under Italian law, on the other hand, the sale or mortgage of any such property may be effected by the husband withthe wife's concurrence and subject to the leave of the competent Court in any case in which such Court is of opinion that the proposed transaction is obviously necessary or useful (A;). As under French law, a revocation of the husband's power over the wife's dowry {seixirazione della dote) may be ordered by the Court in the case of a marriage governed by the dotal regime if the safety of the dowry is imperilled (/). Restitution of the Dowry. — The rules as to the restitution of the dowry on the dissolution of the marriage are, w'ith a few unimpor- tant exceptions, literal reproductions of the corresponding provisions of the French law (?;()• "Wife's Privileged Property. — With reference to her privileged ((/) Thus Italian art. 1389 corre- 1553. sponds to French, art. 1542 ; Italian (/) Cf. Code Civil, art. 1550, with 1391 to French 1543; Italian 1392 and Codice Civile, art. 1400 (second part). 1395 to French 1544; Italian 1393 to (/.•) Cf. Civil, arts. 1554—1558, with French 1545 ; Italian 1394 to French Codice Civile, arts. 1404, 1405, 1407. 154G ; Italian 139() to French 1547 ; (/) Code Civil, arts. 1433—1452, Italian 1.397 to French 1548. 1563; Codice Civile, arts. 1418—1424 (//) Thus Italian arts. 1389—1403 {m) Code Civil, arts. 15(i4— 1573 ; correepond to French arts. 1549 — Codice Civile, arts. 1409 — 1417. COMMUNITY OF INCOME AND PROFITS. 581 property (beni ijarafernali) the wife is in one respect in a better position under Italian law than under French law. Under French law a wife cannot dispose of her Jnom paraphernaux without her husband's concurrence or the leave of the competent Court ; under Italian law the wife has unfettered powers of disposition over her privileged propert}' (a). There is also a difference as to the com- putation of the contribution to be made from the income of the privileged property to the household expenses {h), but having regard to the interpretation put on the provision in question by the French Courts, the practical effect of the rules on the subject is the same in both systems. In all other respects the Italian rules relating to the wife's privileged property under the dotal regime are identical with the French rules (c). (2) Community of Goods between Husband and Wife. — As mentioned above, the only kind of community of goods between husband and wife allowed under Italian law is the community of income and profits (comunidne dcgli utili), which corresponds to the French communaute redidte aux acquets {d). As under French law this community of income and profits may be combined with the dotal regime (e). Limits of Contractual Freedom. — -The details of the affairs of the community may be specially provided for by contract ; in the absence of a contract the rules of the Italian Code as to non-com- mercial partnerships apply {J). Tlie contractual provisions may not include any stipulations under which the property belonging to either of the spouses at the date of the marriage or accruing to either of them during the marriage by way of gift or inheritance becomes part of the common fund, which is the effect of this com- munity (g). In the absence of a contractual stipulation to the contrary, the common fund belongs to the spouses in equal shares ; a stipulation under which one of the spouses is entitled to a larger share is not deemed to be a gift to that spouse from the other spouse. A stipulation providing that the share in the liabilities of one of the spouses is to be larger than his or her share in the assets is void (/<)• (a) Cf. Code Civil, art. 157G, witli {d) Ai-ts. U98 et seq. Codice Civile, art. 1427. (e) Code Civil, art. 1581; Codice (b) Cf. Code Civil, art. luTJ, with Civile, art. 1433. Codice Civile, art. 142G. ( /) Codice Civile, art. 1434. (c) Code Civil, arts. 1574—1580 ; {g) Codice Civile, art. 1435. Codice Civile, arts. 1425—1431. (A) Codice Civile, art. 1440. 582 EFFECT OF MARRIAGE OX PROPERTY ITALIAN LAW. Common Fund. — As under the corresponding rcijime under French law, the common fund consists exchasively of the joint or sejoarate earnings of the spouses and of the net income of the common fund and of the separate property of the spouses remaining after deduc- tion of all payments and debts chargeable on the common fund (i). As under French law there is a presumption that all property of which no formal inventor}^ was taken at the date of the marriage or at the time of its acquisition was acquired out of funds derived from earnings or from income {j). The husband, as under French law, has power to dispose of any part of the common fund for valuable consideration, but while under French law he may also within certain prescribed limits make gifts out of the common fund, Italian law deprives him entirely of the power to use the common fund for any gratuitous dispositions (A). Dissolution of Community. — The community is dissolved : (a) by the death of one of the spouses ; (b) by a judicial declaration as to the prolonged absence of one of the spouses ; (c) by the definitive separation of the spouses ; (d) by a j udicial order for separation of goods {I) . A judicial separation of goods is ordered if the husband's manage- ment of the common fund is proved to be bad, or if, by reason of the disordered state of the husband's financial affairs, the wife's interests are endangered (7h). On the dissolution of the community the wife, or the persons representing her estate, have somewhat more extensive privileges than those to which a wife or her representatives are entitled under French law. Under Italian law she or they ma}^ at her or their option, do any of the following things : (a) renounce the community ; (b) accept it with benefit of inventory (n). If the community is accepted by the wife with benefit of inven- tory, she or her representatives are not liable'^for the debts of the (i) Code Civil, art. 1498; Codice Codice Civile, art. 14;>9, and cf. with Civile, art. 14:56. Code Civil, arts. 1429, 1430. , (y) Code Civil, art. 1499; Codice (/) Codice Civile, art. 1441 ; cf. with Civile, art. 1437. Code Civil, art. 1441. (70 Cf. Code Civil, arts. 1421, (m) Codice Civile, art. 1442; cf. 1422, with Codice Civile, art. 1438. with Code Civil, art. 1443. As to the husband's power to let on (n) Cf. Code Civil, art. 1453, with lease any property of which the income Codice Civile, art. 1444. forms part of the common fund see LAW OF MALTA — GENERAL DISPOSITIONS. 683 community beyond the amount of the assets. If the wife disclaims the community, she or her representatives are free from any liabiHty for the debts of the community. On the division of the common fund, even in a case in which the wife has accepted with benefit of inventory or disclaimed, the presumption referred to above as regards the constitution of the common fund is not applied in respect of movables which the wife can prove to represent propert}' owned by her at the date of the marriage, or gifts or bequests received during the marriage ; but a reservation is made in favour of third parties, who without notice of the wife's rights have acquired any rights in respect of any such movables (o). Where the community has been dissolved by any cause other than the death of one of the spouses it may be re-established in the same manner and with the same effect as under French law(j:'). In Malta (q) the law of married women's property is similar to the provisions of the Italian Civil Code. SECTION 11. Law of Spain. Spanish Law. — The Spanish Civil Code deals with the subject of the marital property J'cf/i/^e under the following heads : — (a) General dispositions; (b) donations in contemjilation of marriage ; (c) dowry (dote), its constitution and security, administration and usufruct, and its restitution ; (d) the wife's paraphernalia or privileged proj)erty ; (e) the system of communit}' of acquisitions (ciananciales) ; (f) the system of separation of property, or the withdraw^al of the W'ife's property from the husband's administration. General Dispositions. — The law of Spain sets up as the statutory regime in the absence of contract the connnunio quaestuum. It allows any marriage contract regarding property to be made free from any restrictions except those imposed by the Code, except that any provisions in such contracts which subject the spouses' property to the powers and customs of provincial law and not the Code are null (r). (o) Codice Civile, art. H45, 1446. (ry) See Ordinances 7 of 1868 and 1 (p) Code Civil, art. 1451 ; Codice of 1873. Civile, art. 1443. (r) Civil Code, art. 1315. 584 EFFECT OF MARRIAGE OX PROPERTY SPANISH LAW. A minor can make such a contract with the consents which are required to his contracting a marriage ; and if such a contract is nuU for want of such consents, he is taken to have adopted the regime of the community of acquisitions {gananciales) (t). The contract must be made by authentic act, executed before marriage, and with other formahties, and must be registered, i.e., inscribed (u). In the case of a marriage abroad between a Spaniard and a foreign woman, or vice versa, v^here no declaration or agreement has been made with regard to their property, in the former case it is assumed that the regime of community of acquisition is adopted ; in the latter case that the usual marital regime established by the law of the husband's State is adopted, except as regards immovable property (v). The contract becomes null if no marriage takes place (x). Donations Propter Nuptias. — These are donations made before tbe marriage in consideration of it and in favour of one or the other spouse, and are governed by the general rules applicable to donations, with certain exceptions (u). Minors can give or receive them with the consents required to their contracting a marriage (z). Spouses can give each other by the matrimonial contract one-tenth of their present property ; and future property can only be dis- posed of in case of death, and to the extent allowed b}^ the disposi- tions of the Code referring to testamentary succession. Such donations are only revocable if conditional and the condition be not fulfilled, or if the marriage be not celebrated or if it takes place without proper consents or if annulled on account of the mala fides of a spouse. All donations between spouses during marriage are null, except presents of inconsiderable value made on family occasions, as are also donations made by one spouse to children of the other spouse by another marriage, or persons to whom the other spouse was presumptive heir at the time of the donation (ct). Dowry (Dote). — Dowry comprises all property brought in as such by the wife upon marriage and any other such property which she acquires during the marriage by donation, succession, or legacy of a {t) Art. 1318. (2) No acceptance is required for (m) I.e., arts. 1321—1324. their validity. (r-) Art. 132.5. (o) Arts. 1327— 1335. Cf. Frencli (x) Art. 1320. Code Civil, art. 1100. DOWRY (dote). 585 dotal character. A dowry can be constituted in favour of the wife before or after marriage by the father or mother or relations of the spouses, or by strangers ; and by a spouse in favour of the other spouse before marriage. If given at or before marriage it is subject to the rules governing donations propter nuptias ; if given after- wards it follows the rules governing ordinary donations. There are detailed provisions respecting obligatory dowries, which are one-half of the child's reserved portion of the parent's property, and to which legitimate daughters are entitled from their parents unless they marry without their consent; and respecting the pay- ment and security and valuation of dowries, which may be valued or unvalued, and are secured by a hypothec of the husband in either case. In the case of a valued dowry the ownership is transferred to the husband, and he is bound to restore iheir value, and takes the risk of gains or losses ; in the case of an unvalued dowry the wife retains the ownership, and the husband is obliged to restore them in specie or their value if movables. If the marriage contract does not specify the quality of the dowry, it is taken as unvalued. The usufruct of an unvalued dowry is enjoyed by the husband, but the wife retains the ownership of it and its consequent gains and losses, the husband only being liable for losses caused by his fault or negligence. The wife can alienate, charge, and hypothecate it with her husband's consent if of age, otherwise with proper judicial or official consents, and the husband must give a hypothec similar to that in the case of a valued dowry. It is liable for the daily household expenses incurred by the wife and allowed by the hus- band, but not till after recourse to the common acquisitions and the separate property of the husband. This differs from the French law by which the wife's property is absolutely secured against creditors of the common property, and even creditors for household necessaries, except in certain specified cases {h). These provisions apply in the case of a marriage contract by the spouses which excludes community of acquisitions but does not mention any marital regime, or where the wife or her heirs renounce the community, and the husband can appropriate all the revenues which will be considered as acquisitions under the regime of community of acquisitions (c). {h) Code Civil, art. 1558. (c) Arts. 1357— 13(}4. 586 EFFFCT OF MARRIAGE ON PROPERTY SPANISH LAW. Eestitution of Dowry. — Dowry is restored to the wife (1) ^Yhe^ the marriage is dissolved or annulled ; (2) when the management of the dowry is transferred to the w'ife of a person declared prodigal (d) ; (3) when the Court so decrees in pursuance of the Code (e). There are detailed provisions for ascertaining the amount of dowr}' which the husband is bound to restore (J). The wife is entitled to receive, without including its value in the dowry, her usual bed and per- sonal apparel, and the debts and rights brought into the unvalued dowry in the condition in which they are when the marriage is dissolved, or their value if irrecoverable. In repaying an unvalued dowry deductions are made of expenses paid by the husband on account of the dowry, the debts chargeable to it and not included in the community of acquisitions under the marriage contract or the Code, and debts personally due from the wife under the Code, and donations in-opter Jiuptias made by the husband, except in the case of separation of property or nullity of marriage where one spouse has acted mala fide. Provision is made for the apportionment of income of the dowry on the dissolution of the marriage (/). Paraphernal Property. — This includes the property brought in by the wife not included in the dowry and property acquired by her subsequently not added to the dowry. She retains the usufruct of it (and the husband cannot take action w^ith regard to it without her concurrence and consent) and the administration of it, unless by notarial act she hands it over to him to manage, and he then has to give a hypothec for the value of the movable property in the form required in the case of dowry {g). The income of the property is part of the fund of the community, and is employed in defraying the conjugal expenses, for which they are liable if the husband's separate property or the dowry are insufficient. The personal obligations of the husband do not bind the income of the para- phernal property except to the extent of any benefit derived by the family from them. The wife cannot without her husband's authorisation alienate, bind, or hypothecate it unless judicially authorised, and the husband can require, if it consists of securities or movables of value and the wife retains the administration, that ((0 Art. 225. (/) Arts. 1365—1380. (e) Art. 1441. (y) Ai'ts. 1381—1384. (/) ArtH. 13G6— 1378. COMMUNITY OF ACQUISITIONS. 587 it shall be deposited so as to prevent dealings with it without his consent. If it is entrusted to him he administers it subject to the rules governing an unvalued dowry, and these also ai)ply to its restitution (ii). Commimity of Acquisitions during the Marriage (Sociedad de Gananciales). — -Under this system the spouses at the dissolution of the marriage are entitled to equal moieties of the profits and gains made, obtained or acquired by either indiscriminately during marriage. The regime begins on the day of marriage (and this cannot be excluded by contract), and it cannot be renounced during marriage except in case of judicial separation of the spouses. It is governed by the rules of the contract of partnership, subject to the following pro- visions (i). The spouses' separate property consists of (1) property brought in by the spouses at marriage, or acquired gratuitously during marriage, (2) property acquired for valuable consideration with projjerty belonging to one of the spouses, or bought with the money exclusively of the wife or husband. Instalments of a credit belong- ing to one j)arty payable over a term of years are not gananciales, but separate property of that party (k). The term " acquisitions " includes — (1) property acquired by onerous title during marriage by means of the common fund, whether in the name of one spouse or of the community ; (2) profits made by the industry of the spouses or either of them, or (3) received or accrued during the marriage proceeding from the common property or property belonging to one of the spouses. A right of usufruct belonging in perpetuity or for life to a spouse is her separate property, but the income of it received during marriage is an acquisition, and thus includes the usufruct in the property of children, even those by another marriage. The term also includes expenditure or advances made by the common fund on the separate property of the spouses, and buildings erected during marriage on land belonging to one of the spouses, taking account, however, of the value of the site to the owner ; in the case of cattle belonging to the wife's dowry or the husband's capital, the excess over the number brought in at marriage ; gains at play ; and all property of the household not shown to be separate {h) Ai-ts. 1385— 1391. {k) Ai-ts. 139G-1400. (i) Ai-ts. 1392—1395. 588 EFFECT OF MARRIAGE ON PROPERTY SPANISH LAW. property {a). The charges and obligations on this property include the husband's debts incurred during marriage or the wife's, where they are binding on it ; repayments and interest due during marriage upon obligations secured on separate or ganancial j)roperty ; ordinary repairs (not extraordinary) of the separate properties ; major and minor repairs of the ganancial property ; maintenance of the family and education of children common to both spouses and legithnate, and donations made to such children or promised by the husband or both spouses, unless with a reservation that the obligation is to be discharged out of separate property ; payment of legal gaming debts ; but not ante-nuptial debts of either spouse nor pecuniar}' fines or damages incurred by them, except arrears of such debts, after paying the debts above-mentioned (b). The husband administers the common fund and can alienate and charge it without the wife's consent, but not so as to prejudice her or her heirs. By will he can dispose of one-half of it. The wife cannot bind the common property without the husband's consent, except where the administration has been granted to her (c), and in cases where it is resorted to, as well as the hus- band's separate property and the wife's unvalued dowry, for household expenses ((/). The community is dissolved by dissolution or annulment of the marriage, but a spouse who has caused the nullity by mala Jides forfeits his or her share. It is also dissoluble where separation of property is demanded by one spouse on account of civil interdiction following on a penalty pronounced against the other, or for the other's legal absence, or where judicial separation of the spouses can be demanded (r^O- Li(piidation of the community is also pro\ided for (.). Separation of Property. — Provision is also made on the lines followed by the other systems already mentioned for separation of spouses' property for the i)urpose of carrying on the administration of the marriage i)roperty while the husband is legally absent or incapable : but the Sj)anish law does not provide the same security for the wife's dowry as does the French Code (/). (a) Arts. 1401— HOT. {) Arts. 1408, s. 4, and 1410. (e) Arts. 1418--14;51. (c) Arts*. 1441, 1442. (/) Code Civil Espagnol, trans, by {il) Arts. r.Wl and 1408, .•^. 5. A. Levy (1890), p. 271. C. C, art. 1443. SEPARATION OF PROPERTY. 589 Failing an express stipulation to that effect in the marriage contract, separation of property can only be effected during marriage by judicial decree, except in the case of marriages between persons prohibited from contracting them, e.f/., for want of parents' consent or for a woman within 301 days after the death of her former spouse, or between guardian and ward {(/). Either spouse can demand it (A), and it must be granted when the other spouse has been sentenced to a penalty involving civil interdiction, or has been declared legally absent or has given cause for a decree of judicial separation, and thereupon the community of acquisitions is dis- solved and liquidated, but the spouses must provide for their main- tenance and that of their children. Where the husband demands it, the power of administering the marriage property given to him by the Code continues even after separation of i3roperty has been pronounced, but the wife has no right to subsequent acquisitions and the husband's rights are governed by the rules applicable to the administration and usufruct of dowry and restitution of dowry. Where the wife demands it and it is granted for the husband's civil interdiction, she transfers to him the administration of the marital property and future acquisitions ; if in like case it is granted on account of his legal absence, or his being the cause of judicial separation, she recovers the administration of the dowry, as she also does if he is declared prodigal (i). Administration of the marriage property is also transferred to her by order of the Court where she is guardian to her husband and in the cases mentioned above {k) : and, also, with such limitations as it thinks lit, if he is a fugitive from justice or in criminal contempt or incapable of acting. The wife has the same power and responsibilities as the husband in exercising the administration ; but the authorisation of the Court is required for her dealing with the property (/). Separation does not affect the previously acquired rights of creditors. Nor does it authorise the exercise of the rights of the spouses stipulated for in case of their respective deaths, nor (as provided in case of restitution of dowry or liquidation of the community) a claim for return of the personal effects of the spouses, but it does not affect the provisions which take effect when that event haj)pens, except as regards the ig) Ai-ts. 50, 1432, and 1434. and 225. (h) Arts. 1433, 1437. (A;) Arts.183,185— 220, 1436,and 1441. (i) Arts. 1434, 1435, 1436, 1443, {l) Arts. 1442, 1444. 590 EFFECT OF MARRIAGE ON PROPERTY — GERMAN LAW. effects of judicial separation (»0- When the separation terminates, the former marital regime is resumed (??). SECTION III. Law of GEKiiANY. I. Statutory Regime. — There were numerous systems in force in the several parts of Germany prior to 1900 which need not be con- sidered for the present purpose (o). Exclusion by Ante-Nuptial or Post-Nuptial Contract. — In contra- distinction to the French law which only allows an ante-nuptial contract to modify the statutory rfr/ime, the German Civil Code allows the statutory regime to be modified by contract, either before or after marriage (p). Husband's Rights and Duties as to Wife's Property. — General Provisions. — The wife's property, whether possessed by her at the time of the marriage or acquired by her during the marriage and not being of the nature of privileged property {Vorhehaltsgut), is termed Eingebrachtes Gut (which term may be translated by the expression "non-privileged property"), and is subject to the management and usufruct of the husband. In the case of the wife .being under restricted capacity at the date of her marriage and marrying without the authorisation of her statutory agent this right •of the husband does not arise : the parties in such a case are deemed to live under the regime of " separation of goods " (q). The privileged property includes : (a) Things destined exclusively for the personal use of the wife, more particularly articles of dress and ornament or tools or apparatus used for purj)oses of work ; (b) the personal earnings of the wife ; (c) objects of property specifically (m) Arts. 1438, 1440. (). The husband has to bear the expenses of the conjugal life ; the wife may require him to apply the net income of her non-privileged property towards his and her maintenance and the maintenance of their common issue before he satisfies an}' other claims. Necessary •expenses incurred by the husband in the course of the administration of the wife's property are to be reimbursed to him by the wife* unless, under the rules stated above, such expenses as between the spouses have to be discharged by him (c). The husband has no power to assign his right of usufruct to any other party ; if he is under guardianship the right of usufruct is exercised by his guardian on his behalf even in a case in which the wife is the guardian ((/). Wife's Rights and Duties. — The wife cannot, except in the cases referred to below, dispose of any part of her non-privileged pro- perty without her husband's authorisation. A contract affecting matrimonial property made without such authorisation may how- ever become binding if ratified by the husband in the manner prescribed by the Code. On the other hand, a unilateral act by which the wife without the husband's authorisation disposes of any non-privileged property cannot be made binding by subsequent ratification (,) S. 1457. {!/) S. 1441 ; cf. s. 1371. 600 EFFECT OF MARRIAGE OX PROPERTY GERMAN LAW. Rules as to Receipt and Disposal of Income. — The income of the common fund and also the income of the non-privileged property of both spouses is receivable by the husband by virtue of his powers of management, but it accrues to the common fund and must be accounted for accordingly. The conjugal expenses are pavable out of the common fund, and if the income is insufficient for that purpose they have to be provided for out of capital. The -wife is not bound to apply any part of her privileged separate property towards the discharge of the conjugal expenses except in so far as the income accruing to the common fund is insufficient for the purpose of discharging such expenses (z). Liability for Debts. — As between Spouses and Creditors. — The husband's creditors may enforce their claims against the common fund in all cases ; the wife's creditors may, as a general rule, enforce their claims against the common fund, but the same classes of liabilities, which under the statutory regime are not binding on the wife's non-privileged property, are, under the regime of general community of goods, not binding on the common fund. The husband's creditors may also enforce their rights against his separate property ; the wife's creditors may in all cases enforce their rights against the wife's privileged separate property ; as regards the non-privileged separate property, their rights are the same as under the statutory regime. Each spouse is, of course, personally liable for his or her own debts, but as regards such of the wife's debts as are chargeable on the common fund, the husband is also liable severally and jointly with the wife (a). As between the Spouses inter se. — Some of the liabilities which, as between a spouse and his or her creditors, are enforceable against the common fund, are, as between the spouses inter se, chargeable on the privileged property of the spouse through whom the liability arose. This is the case with reference to all kinds of liabilities, which, if incurred by a wife under the statutory regime, are, as between the spouses, chargeable on her privileged property {!>). (z) Ss. 1438, 14r>8. spouses infer se in respect of the outfit (a) Ss. 1459 — 1402. to be provided on the marriage of any {h) Ss. 1403, 1404 ; compare ss. 141o, commou child or of any child of either 14 IG. As regards the liabilities of the spouses, see s. llOo. DISSOLDTIOX OF COMMUNITY. GOl A husband who uses any property forming pai-t of the conniion fund for the benefit of his privileged property, must replace the value of such propert}', and a husband who uses any part of his privileged property for the benefit of the common fund is entitled to compensation out of the latter fund (r). The amounts owed by each spouse to the common fund under the rules stated above need not, as a general rule, be reimbursed before the dissolution of the community, but in so far as any such amount is owed by a wife having sufficient privileged property, the debt must be discharged as soon as it arises (d). Dissohition of Commimity. — The communit}^ is dissolved Ij^so facto : (a) On the death of either spouse (except in the case of a continuance of the community between the surviving spouse and the children of the- marriage under the rules referred to below); (b) on the re-marriage of one of the spouses after the judicial declaration of death of the other spouse ; (c) on the judicial separation of the spouses or on the dissolution of the marriage by divorce ; (d) by a post-nuptial marriage contract providing for such dissolution (t). The community may be dissolved by judicial order on the wife's application : (a) If the husband has without the wife's assent made any disposition affecting the common fund and requiring such assent, and if by reason thereof there is ground to apprehend serious prejudice to her for the future ; (b) if the husband has diminished the value of the common fund w'ith the intention of prejudicing his wife ; (c) if he has not complied with his duties as to the maintenance of his wife and their common issue, and their future maintenance is seriously endangered ; (d) if he has been placed under guardianship on the ground of prodigality or if by his prodigality he is seriously endangering the existence of the common fund ; (e) if the debts of the common fund by reason of liabilities incurred by the husband exceed the assets to such an extent that the wife's after-acquired property and earnings are endangered {./'). The community may be dissolved on the husband's application if the wife has incurred liabilities in respect of which the creditors ((•) S. 14(56. 1436. ('/) 8. 1467. (/■) S. 1468. (e) Ss. 1482, 1483, 1348 1564, lo86, <302 EFFECT OF MARRIAGE ON PROPERTY OER.MAN LAW. may resort to the common fund, but which as between the spouses are chargeable on the wife's separate property, and if such liabihties exceed the assets of the common fund to such an extent that the husband's after-acquired property and future earnings appear to be endangered (//). In all cases in which dissolution is ordered by the Court it takes effect on the day when the judgment ceases to be appealable ; but the applicant may require the partition to be efiected as from the date of the application. As from the date from which the dissolution of the community operates, the parties, in so far as their marriage continues, are deemed to live under the regime of separation of goods. The rules about the effect of the change of rffiimc on third parties, and about the right or duty of the husband to continue his management in certain events are the same as the corresponding rules applicable in the event of withdrawal of the husband's right of management and usufruct under the statutory regime. Each of the spouses is entitled to claim partition : pending partition neither spouse can dispose of his or her share in the common fund ; and the manage- ment of the partition of the common fund is entrusted to both spouses jointly, the heirs of a deceased spouse taking his or her place in a case where the community was dissolved by his or her death (//). The property comprised in the common fund is in the first place applied towards the discharge of all liabilities payable out of the common fund, and for that purpose a sufficient part thereof must be converted into money (due regard being had to outstanding or disputed liabilities). The residue is divided in equal parts, but so that any amount owing to the common fund by either spouse is set off against the moiety to which he or she or his or her estate is entitled. Each spouse may select as part of his or her share articles intended for his or her personal use and also all articles contributed l)y him or her to the common fund. Where on a divorce or judicial separation one of the spouses is declared to be the exclusively guilty party, the rule of division is consideral>ly modified. In such a case the innocent spouse can at his or her option either claim his or her moiety of (//) S. \Am. (//) Ss. 1170— H72, HT1». RULES AS TO CONTINUANCE OF COMMUNITY. HOo the common fund, or the restitution of the vahie of the wliole property contributed by him or her to the common fund, and if the whole of the common fund is insufficient for that purpose the party declared guilty is liable personally for half the deficienc3\ After the completion of the partition both spouses are liable jointly or severally for all outstanding liabilities payable out of the common fund, but in so far as a spouse during the subsistence of the community was not personally liable, his or her liability is limited to the extent of the value of the property received by him or her upon the partition, each spouse being, however, entitled to be indemnilied by the other in respect of any liability which, as between him and the other spouse, ought to be satisfied by the latter (/). Rules as to Continuance of Community. — If, on the death of either spouse, any issue of the marriage survive, the community is continued between the surviving si:)ouse and such of the issue of the two spouses as in case of the intestate succession of the predeceasing spouse would be entitled to his or her estate, unless such continuance is excluded or prevented under any of the rules stated below. If the community is continued the share of the deceased spouse does not form p'art of his or her estate, but passes to the issue in the same way as if it had under an English settle- ment been vested in the deceased spouse for life with remainder to his or her surviving issue (A'). The continuance of the community may be excluded : (a) By express stipulation in any contract between the spouses ; (b) in certain specified events by testamentary disposition of the pre- deceasing spouse. The continuance of the community may be jivercnted by the refusal of the surviving spouse to submit to it (/). Where besides the common descendants there are other descen- dants of the predeceasing spouse, they take their share in the moiety belonging to such spouse in the same manner as if the community had not been continued. Subject to the satisfaction of the claims of any such descendants the common fond of the continued conmiunity consists (a) of the common fund existing (0 Ss. 1477—1481. (/) Ss. luOS, 1509, 1484. {k) Ss. 1482, 148:3. G04 EFFECT OF MARRIAGE ON PROPERTY GERMAN LAW. at the time of the death of the predeceasmg spouse ; (b) of the share of the surviving spouse in the estate of the deceased spouse ; (c) of any j^roperty accruing to such surviving spouse during the continuance of the community (;»). The rules as to the management of the common fund are also applied to the continued community, but so that the surviving spouse takes the position of the husband and the participating issue take the position of the wife (^0- All liabilities of the surviving spouse and all such liabilities of the deceased spouse as were payable out of the original common fund are payable out of the common fund of the continued com- munity ; the surviving spouse is also personall}' liable for the liabilities payable out of the common fund of the continued com- munit3% but in so far as his liability is increased by reason of the continuance of the community it is limited to the same extent as the liability of an heir is limited (o). On the death of any of the i^articipating issue leaving issue such issue are substituted in his or her place ; the share of any issue not leaving issue accrues to the surviving participating issue. In default of such issue the surviving spouse takes the whole (/')• A person entitled to a share in the continued communit}^ n^^J waive his right to such share, but if he is subject to parental power or guardianship his waiver requires the sanction of the Guardian- ship Court. Tiie effect of the waiver is the same as if the party waiving his right had died without leaving issue (q). The continued community may be dissolved at an}' time by a declaration made by the surviving spouse in a prescribed form, and it is dissolved ipso facto by the re-marriage or death or declaration of death of the surviving spouse. It may also be dissolved by the order of the Court on the application of any participating issue : (a) On grounds substantially identical with the grounds on which a wife may a})ply for dissolution of the original connnunity ; (b) on the ground that the surviving spouse has forfeited his or her parental power over the applicant or would have forfeited it if the applicant had been under parental power. On dissolution the {m) .S.S. 148:}, HS.j. {}>) S. 14JK). (//) S. 14.ST. {,{) S. 1491. {(>) Ss. 14HS, 1489. COMMUNITY OF INCOME AND rROFITS. G05 partition takes place in a similar manner as in the case of tlie dissolution of an ordinary communitj^ (/). Each spouse may by will, within certain prescribed limits, modify the rights of descendants in regard to the continued comnuuiity. Such dispositions, if made by one spouse alone, require the consent of the other spouse (-s-). (2) Community of Income and Profits. — Formation of Common Fund. — Under this rnjiiuc the common fund is formed exclusively of such property as represents profits, earnings, and income accruing to each of the spouses during the marriage, with the exception of the income derived from the wife's privileged property or income which by marriage contract is excluded from the common fund {t). Rules as to Separate Property. — All propert}^ belonging to either spouse not representing profits, earnings, or income (whether existing at the time of the marriage or accruing during its subsistence by way of gift or inheritance) remains the separate property of such spouse. Privileged separate property is only recognised in the wife's case, and is formed of the same kinds of property as are deemed privileged property under the regime of general community of goods. All other separate property of either spouse is non- privileged property of such spouse (with the result that the income of such property belongs to the common fund unless a marriage contract provides otherwise). All property which cannot be proved to be separate property of either spouse is deemed to belong to the common fund. Each of the spouses is entitled to an inventory of the separate property of each of the spouses (»)• Management of Common Fund and Separate Property. — The common fund is administered in the same way as under the rt'[iii)ie of general community of goods. The wife's separate non- privileged property is administered in the same way as under the statutory regime (.r). Liabilities Payable out of Common Fund. — The common fund (r) S. 1492 — 1502. As to the appor- "unworthy" by judicial order, see tionment of the moiety belonging to s. 1,306; as to the official certificate the issue and. of the liabilities to which relating to the continuance of the the issue are all subject, see ss. 1503, community, see s. 1507. 1504 ; as to the rights of any issue in (•«) Ss. 1511 — 1516. respect of gifts made during the life- {t) Ss. 1519, 1525. time of the spouses, see s. 1505 ; as to [n) f^?. 1520—1528. the exclusion of any issue declared (.i-) Ss. 1519, 1525. 606 EFFECT OF MARRIAGE ON PROPERTY GERMAN LAW. is charged with (a) the expenses of the conjugal Ufe ; (1)) all out- goings affecting the husband's separate propert}', and all out- goings affecting the wife's non-privileged separate property ; (c) all debts and liabilities incurred by the husband and certain specified liabilities incurred by the ^\•ife. Elaborate rules are also given for the apportionment of liabilities as between husband and wife which somewhat differ from those applicable in the case of the general communit}' (//). Dissolution of Community of Income and Profits. — The com- munity may be dissolved by order of the Court on the application of either spouse on grounds similar to those on which the applicant would be entitled to obtain an order for the dissolution of the community under the regime of the general community of goods. The wife may also obtain an order for such dissolution on the grounds on which she could obtain the revocation of the husband's right of management and usufruct under the statutory regime. The community is dissolved ipso facto on the grounds on which the general community is dissolved ipso facto, and also on the grounds on which the husband's right of management and usufruct under the statutory regime is revoked ipso facto. If the dissolution is brought about during the subsistence of the marriage the regime of separation of goods takes the place of the former existing regime. The reinstatement of the community may be brought about in the same way as the reinstatement of the husband's right of manage- ment and usufruct under the statutory regime. "Where the hus- band's bankruptcy has caused a dissolution, the wife ma}^ obtain a judicial order for the reinstatement of the community (^). A continuance of the community after the death of one of the spouses cannot take place under this regime (a). (3) Community of Movables. — This is the short name for the regime of which the full designation is " Community of movables and of income and profits " (Gemeinscliaft des heiregliclieii Vcrmo- gins liiid (ler Krrjuigenschaft). The common fund under this rrgimc consists of the same classes of property of which that fund consists under the regime of general community of goods, except that all innnoval)le8 belonging to either spouse at the date of the marriage or subsequently accruing to him or her b}' way of gift or (y) Ss. 1529—1541. («) Cf. s.><. 1 l.S;i ami 1 J57. {z) Ss. 1542— 154.S. CO.MMUNITY OF MOVADLKS. 607 inheritance are excluded. Immovables acquired in exchange for property originality included in the common fund become part of that fund though the community is described as a communit}^ of movables. Easements, real rights of pre-emption, perpetual charges affecting land, rights of common, rights of patronage, sporting rights, and similar rights are deemed immovables (J>). The separate property of each spouse consists : (a) Of all immov- ables belonging to each spouse at the date of the marriage or accruing to him or her daring the marriage by way of gift or inheritance ; (b) of all inalienable objects belonging to or accruing to such spouse ; (c) of all objects declared to be separate property by marriage contract ; (d) of all objects declared to be given as separate property by the testator or donor from whom they are derived. In the wife's case an}' of the objects described under (c) and (d) may be declared to be privileged separate property. The husband, on the other hand, is not entitled to have any privileged separate property (c). As regards the management of the fund, the liability for debts, and other similar matters, the same rules apply as under the regime of general community of goods ((7). Whilst under the rccjiine of " general connnunity of goods " a continuance of the community takes place on the death of one of the spouses unless prevented or excluded by one of the events mentioned above, and whilst under the regiiite of community of income and profits such a continuance cannot take place in any event, the rafiDw of the community of movables admits of a continuance after the death of one of the spouses, but onl}' in so far as this is provided for by marriage contract {e). SECTION IV. Laws of Austria and Hungary. Austrian Law. — Statutory Marriage Regime of Property. — Marriage has, in general, no eft'ect on property relations of the spouses. The spouses retain their respective rights of property, and the one has no claim upon what the other acquires during the marriage or- {!>) ^s. 1549, 105J, \ib\. ((/) Ss. 1549; but see s. 1556. ('•) Ss. 1551 — 1555. (e) S. 1557. 608 EFFECT OF MARRIAGE ON PROPERTY AUSTRIAN LAW. obtains in any way. In doubtful cases it is presumed that the acquisitions are derived from the husband (/). Nevertheless, in the absence of any contradiction by the wife, the legal presumption is that she has entrusted to the husband as her legal representative the management of property that she has absolutely at her disposal (r/). The husband, as regards this management, is in the same position as an}^ other person entrusted with a full power of attorney for the other. But he is only respon- sible for the corpus ; he is not liable to account for income acquired during his management unless this has been specially provided for, his enjoyment of the income being considered as lawful up to the day when his management ceases (Ii). Similarly the wife is not liable to account for the income which she has made over to her husband, but has herself enjoyed during the marriage. Each spouse is, however, at liberty at any time to determine the power of management tacitly entrusted to the other spouse (i). In urgent circumstances, or where there is a risk of injury to the property, the power of management can be withdrawn from the husband, even though it has been conferred upon him expressly and without any limit of time. On the other hand, the husband is entitled to put a stop to improvident management on the wife's part, even as regards her own fortune, and to have her declared spendthrift according to the statutory provisions (k). Contractual Property Regime. — The spouses can regulate their proprietary relations as they like by contract. Such contracts relate either to their mutual legal relations as regards property during the marriage, or they provide certain benefits for the survivor of the two spouses. The Code contains special pro- visions with regard to " marriage property " — which is property transferred or secured by the wife or a third party on her account to the husband in order to lighten the burden of expenditure in connection with the marriage (/). The marriage property consists of immovables, rights, or of such movables as can be enjoyed without detriment to their substance. The wife is considered as the owner and the husband as the (/) C. C, art. 1237. (/) Art. 1240. (V) Art. 1238. (k) Art. 1241. (//) Art. 12:!!). (/) Art. 121S. HUNC4ARIAN LAW. 609 usufructuary, until it is proved that the hus))and has taken over the marriage property for a fixed sum, and has hound himself to return only that specific sum of money (?»). By law the marriage property, after the death of the hushand, reverts to the wife, and if she predeceases him her statutory or testamentary heirs take it in her place. If such reversion is to he excluded, an express stipulation is necessary. A person who voluntarily provides the marriage property can stipulate that it shall revert to him after the death of the husband (?i). There are further different rules which regulate the legal con- sequences of certain provisions made for the benefit of the wife, namely, those relating to jointure (o), gifts made immediately on marriage (/•), provision of income for maintenance during widowhood {q), and usufruct in the event of death (r). If community of goods has been agreed upon between the spouses, that is usually understood only to refer to the event of death, gives the spouses the right to claim half of the funds remaining after the death of one of the spouses out of the common fund formed by the properties respectively contributed thereto by the two spouses (s). Hungarian Law. — Freedom of married women's property is a fundamental principle of Hungarian law, laid down of old in the Tripartitum (a.d. 1514). The married woman retains free posses- sion of her goods ; there are no restrictions whatever of women's capacity. For the validity of contracts between husband and wife a public notary's act is required. Stante matrimonio, the Eoman dotal-paraphernal system remains in full vigour ; the husband has only the usufruct of the dowry given to him by special contract. Yet, on the dissolution of marriage, either by death or by divorce, the right of community of income and profits may be claimed, varying with the different classes of society. Between spouses belonging to the nobility or the " lionoratiores,'' i.e., persons employed in one of the learned professions (lawyers, medical men, teachers, etc.), there is no statutory right of community of income and profits, the husband (m) Art. 1228. i'l) Arts. 1242—1244. (ft) Art. 1229. (»•) Arts. 1255— 1258. (o) Arts. 1230, 1231. (s) Art. 1234. (») Art. 1232. M.L. 39 610 EFFECT OF MARRIAGE ON PROPERTY — SWISS LAW. being considered as " chief earner of income ; " but the right may arise by virtue of a contract or in the event of the husband deriving any profit from the wife's property. Between spouses not belonging to the nobility or the learned professions, i.e., those earning their living by trade, there is a statutory right of com- munity of profits and income, and on the dissolution of marriage each party is bound to deliver to the other, or his or her heirs, half of the accession of property acquired during the marriage otherwise than by gift and inheritance. An ancient and nearly obsolete institution of Hungarian marriage property law is the so-called legal " dutalitium," a sum of money to be paid ex lege from the husband's property to the wife on the dissolution of marriage, which, however, is forfeited in case of the wife's infidelity. A variety of this institution is the so-called dos scripta, a sort of " Morgengabe " promised by special contract by the husband to his wife. The husband has to bear the common household expenses out of his own means, and has no claim whatever to recoupment from the wife's property. The wife, if surviving, has a very substantial right of dower, the consideration of which belongs properly to the law relating to the devolution of property on death. SECTION V. Law of Switzerland. The rff/ime matrimonial in Switzerland is governed by the law of the canton in which the first matrimonial domicil is established, which in case of doubt is the canton of which the husband is a citizen at the time of the marriage ; but if the matrimonial domicil is changed during the continuance of the marriage the spouses may, witli the consent of the proper public authority of the new domicil, subject the relations between themselves to the law thereof by means of a joint declaration made to the proper cantonal officer. Such a declaration will relate back to the com- mencement of the proi)erty relation. The rights of third parties against the spouses, and in particular those of the husband's creditors against the wife, in case of bankruptcy or execution against him, are governed by the law of the domicil for the time COMBINATION OF PROPERTY. 611 being ; and no right acquired by third parties under the law of any domicil of the spouses can he altered by a subsequent change of domicil (a). I. The Existing Law. The legal systems of the cantons vary very greatly, and it is not possible to give a complete account of them in a moderate space {b). They have been classified as follows : — 1. Combination of Property {Guterverhindnng or Verwaltungs- gemeinschaft, Ilrgime sans Cmnmnnautc (c) ). — This system, which is closely parallel to that of the German Code, is the most usual in Switzerland, and prevails in Ziirich, St. Gallen, both cantons of Appenzell, Uri, Schwyz, Unterwalden, Luzern, Glarus, and Zug, and it may also be adopted by the spouses in those parts of Switzer- land where the law is the French Code {d). The main principle is that the goods of the spouses are considered as united into one complex, which is administered by the husband, but he has only a usufruct and administration of such property as his wife has at the date of the marriage, or acquires during its continuance by (a) See Federal Law of June 'ioth, 1891, on the Civil Relatious of citizens established or resident in a canton other than that of origin, arts. 19 — 21 ; and Bader's commentary thereon. {h) For fuller information, see Huber, Schweizerisches Privatrecht, i., 237—393 ; Schreiber, Die Ehelicheu Giiterrechte der Schweiz. A good general summary of these systems is to be found in the introduction to the Manuel du Droit Civil Suisse of Eossel and Mentha, now in course of publication; and a historical account in Die Ehelichen Giiterrechte der Schweiz, by F. von Wyss. (c) This is the name of the most closely corresponding regime under the French Code. In the French text of the Swiss Federal Code it is called union des hiens ; in the Italian unione del heni. {d) These are Geneva and the western or French-speaking part of the canton Bern [Jura ler)tois). The latter has preserved the French Code in its original form, though it is said that the hypotheque leyah of the married woman (above, pp. 114, 570) does not exist in the Protestant part of the Jura hernois, but only in the Catholic part (Eossel, Manuel du Droit Civil de la Suisse romaude, p. 412) ; the former has introduced considerable modifica- tions. Thus, by the law of November 7th, 1894, a married woman has a right to the profits of her personal labour during the marriage, as though she were under the regime of separate property, and these profits are liable for debts contracted by her without her husband's authorisation, and (after the husband and the community) for the support of the household and the maintenance and education of the children ; and by the law of September 12th, 1868, the hyjjotheque legale of the married woman is subject to the formality of registration. 89—2 612 EFFECT OF MARRIAGE ON PROPERTY — SWISS LAW. inheritance or gift (e), though he remains the owner of the property contributed b}' him. The ante-nuptial debts of the spouses remain separate and are attached to their respective propert}^ but the debts contracted during the marriage are borne by the husband (/). Upon the termination of the marriage the husband or his heirs are required to restore to the wife or her heirs so much of the property belonging to her as still exists in specie and to make compensation for so much as no longer exists (r/). For this purpose an inventory may be drawn up, either by compulsion of law or at the request of the wife. 2. Unity of Property {Giitereinheit), a system which prevails in the cantons of Bern and Aargau generally, and also in Vaud and Fribourg(/<) as regards the immovable property of the wdfe, and also her movables to such extent as the husband gives security for them. Under this system the wife's proj^erty becomes the husband's absolutely, and he is bound to bear all her debts, whether contracted before or during the marriage ; but the wife becomes a creditor of the husband for the amount of her fortune, and the debt falls due upon the termination of the marriage. 3. Community of Acquisitions or of Income and Profits {Errnugen- schaj'tsyenicinachaft, CommHuautv rcstreinte aiix Acquets), which is the ordinary law of Neuchatel, Valais, Solothurn, Schaffhausen, and the Grisons, may be adopted by the spouses in the parts which are subject to the French Code and in the cantons of Vaud and Fribourg (/). This system is differentiated from the first two by the fact that while in them the wife has no share in the success or failure of the marriage, so that her claim against her husband remains unaffected by the gains or losses which may accrue during (e) In the Federal Code (see art. 387) and Schreiber (I., G9, 14G) prefer 195) such property is called the to regard the common law system of property contributed bj' the wife these two cantons as a variety of com- [einyebrachtes Gut, apports, apporto). bination of property ; and this seems (/) lluber, i., 242, 247. Action to be more correct as regards the wife's may, however, in general, be brought property for which security is not against the husband during the con- given. By the law of the Canton de tinuance of the marriage for his wife's Vaud of 1899, the wife's consent is ante-nuptial debts : ibid., 296. necessary to the passing of her property {g) Cf. Federal Code, arts. 212, 213. to her husband. (A) Huber, 8chweizerisches Privat- («) It is also the law of Thurgau, recht, i., 243, 245. Rossel (Manuel du so far as the dissolution of the conjugal Itroit Civil de la Suisse romandc, 379, community is concerned. COMMUNITY OF PROPERTY. 613 its continuance, in the system of common acquisitions the wife will receive a share of the additions made to the common stock during the marriage. The relations of the capital of the wife's property to the common stock may, under this system, he either one of unity, as in Solothurn, or of combination, as in the four other cantons above named. Some of these cantons (Schaffhausen and the Grisons) go further and add to the community of acquisitions a community of losses ; while Solothurn formerly made the wife jointly responsible with her husband in case of his insolvency (.;). 4. Community of Property {Giltergemeinschaft, Communaiite de Biens). — This, which is, as we have seen, the common law of France, is likewise the common law of the parts of Switzerland where the French Code prevails, and is also to be found in the two half-cantons of Basel and in Thurgau, where it is extended also to the immovable property belonging to the spouses at the date of the marriage. In this system the fortunes of the husband and wife are united into one complex, which belongs to the married pair as joint owners, and bears the ante-nuptial debts of both spouses ; and upon the termination of the marriage it is divided between the spouses or their legal representatives. But the system is nowhere in Switzerland carried out logically to its full extent (/i). Under all these systems the property of the wife, or so much of it as is not specially reserved to her, is joined to the husband's, and he has full powers of disposition thereof, subject in some cases to the wife's consent or to other formalities {I). So, too, in case of his bankruptcy the conjugal property forms part of the ptroperty divisible among the creditors, except in so far as the cantonal law gives the wife a right to recover it in specie, and no si)ecial pro- ceeding against it is necessary {m). This differentiates them from the last system which we have to consider, in which the property (/) Civil Code of 1855, art. 198; (m) Weber and Brustleiu, Das Huber, i., 245, 300. Bundesgesetz iiber Schuldbetreibung (A-) See Huber, i., 259. und Koukurs, p. 257, n. 10 b. As to (/) Huber, i., 266 efsej. Thus, under the privileges conferred upon the the Laws of Zurich (Civil Code, art. wife's claims for her property in 591) and Luzern (law of December the husband's bankruptcy by many 25th, 1880, s. 7) the husband cannot cantons, see Huber, op. cit., i., 327 — alienate landed property belonging to 334. his wife without her consent. G14 EFFECT OF MARRIAGE ON PROPERTY — SWISS LAW. of the wife remains hers, and she retains full powers of manage- ment and alienation. 5. Separation of Property {GiitertrenuKur/, Regime des hieus Separes, Separazione dei Beni). — This is the common law of the canton of Ticino (/?), and it maj' also he adopted b}^ the siDOiises in cantons under the French Code (o), and under the Codes of Neuchatel (p) and tiie city canton of Basel. In Ticino and cantons under the French Code it may be combined with a dos. Moreover, in many of the cantons which fall under one of the other systems property may be reserved to the wife by contract or otherwise {Sondergut, vorhehal- tenes Gut), and she is then in general treated, in regard to it, as though she were living under the regime of separate property (7). And in several cantons the property of the wife may be separated by a judicial or administrative authority from that of her husband, generally upon her request, but sometimes upon his also, for the purpose of protecting it against loss (r). The provisions of the French Code as to the dos have already been given (s) ; they are law both in Geneva and the French part of the canton of Bern ; but they must be read in conjunction with art. 35 of the Federal Code of Obligations (f), and (for Geneva) with the law of November 7th, 1894 (u). The dos is defined by the Code of Ticino as consisting of the property which the wife contributes to assist her husband in bearing the expenses of the marriage. It may also be contributed by other persons, for example the wife's parents ; the contributions of the wife must be made before marriage, but other persons may constitute or add to the dos during the marriage. Gifts made during the marriage must be expressly accepted by the husband, otherwise they will be only part of the extra-dotal property of (n) Iliiber, i., 245; Civil Code, (r) Huber, i., 313— 317 ; Civil Codes arts. 655— 658. of Grisons, art. 45; Solothurn, arts. (o) Seep. 611, above, n. (r/). 91, 108; Basel (city), law of March (//) Civil Code, arts. 1137, lli»8— 10th, 1884, art. 40 ; Yaud, arts. 287 1202. et seq., 1071 ; Neuchatel, arts. 1172, {q) See, e.g., Civil Codes of Zurich, 1173, 1175; Geneva, arts. 14'13 — 1452, art. 597; Bern, arts. 89, 90; Glarus, and law of November 7th, 1894, art. 154 ; Grisons, art. 39 ; Zug, art. art. 5. 35; Schaffhausen, art. 145; Luzcrn, (s) P. 549, above, law of December 25th, 1880, art. 11 ; (/I) See p. 615, below. IIiilirT, Schw. Privatrecht, i., 293—295. («) P. 611, n. ('/), above. CONTRACTUAL llt^GIME. 615 the wife ; and the hiishand's acceptance entails upon him the obligation of contributing half its value by way of contrados. The dos is inalienable, except by order of the Court, which is made only in very special cases. It may be valued, in which case it becomes the property of the husband, who is required only to repay the amount of the vahuition ; if there is no valuation, the husband is entitled to the usufruct of the property contained therein ix). Contractual Regime. — The rnjime mairhnonial may in some cantons be varied by contract between the spouses. Thus we liave seen that the French Civil Code allows them to choose their own regime, provided that certain conditions are satisfied (?/). This provision is in force in Geneva and the French part of the canton of Bern, and is closely followed by the Codes of Vaud (z), Fribourg, Valais, and Ticino (a). Again, as we have seen, Neuchatel and the city canton of Basel allow the spouses to adopt the regime of separation of pro- perty, but not any other regime, instead of the common law regime of those cantons. All these cantons follow the French Code in requiring the contract to be drawn up before the celebration of the marriage and forbidding its alteration after that date, except that in Fribourg the community of acquisitions may be subsequently agreed upon. The contract must also be a notarial act, except in the canton of Valais, The country canton of Basel allows any contract to be made, provided the proper forms are observed. In Thurgau the wife's fortune may be reserved to her as separate property, or security may be given for it by means of a marriage contract, which must be in writing, and is to be laid before the proper public authority and published (h). The Grisons (c) also allow alterations to be made in the matrimonial regime by contract, on the condition that the provisionsas to the husband's control of his wife, the restric- tions on her capacity, and so forth, are not infringed. Finally, Zurich ((/) and Schaffhausen allow marriage contracts only in very exceptional cases, and require the consent of a judicial authority. By art. 35 of the Federal Code of Obligations, if a married (a;) Civil Code of the canton of art. 1269 ; Ticino, art. 632. Ticino, arts. 634 — 654. {b) Thurgau, Civil Code, arts. 87 (?/) Pp. 477, 478, 561, above. et seq. {z) Art. 1042. (c) Civil Code, arts. 47, 48. (a) Fribourg, art. 105 ; Valais, {d) Civil Code, arts. 615 — 619. 616 EFFECT OF MARRIAGE ON PROPERTY SWISS LAW. woman carries on a business or profession on her own account with the consent of her husband, she is hable for any obHgations con- tracted in the ordinary course of the business or profession to the whole extent of her fortune, without regard to the rights of her husband to enjoy and administer it (<'), and further, in those cantons where the wife's property passes to her husband he is also liable; or if there is a community, the community is liable (/). In case of the bankruptcy of the husband, the wife's claim for the restitution of such of her contributed property as is privileged by cantonal law is entitled to a priority over ordinary creditors (g). II. The Fedeeal Code. Transitory Provisions. — Uj^on the coming into force of the Federal Code (//) such provisions of the existing cantonal family laws and laws of inheritance as the cantons may think fit to declare part of the law of matrimonial property, with the exception of provisions relating to the extraordinary regime, to reserved j)roperty, and to marriage contracts, will remain in force as regards the relation to one another of spouses married at that time ; but as regards other persons such spouses will be subject to the new law, unless before it comes into force they have handed in a joint declaration in writing of their desire to continue to be governed by their existing regime, which declaration is to be entered in the register of matri- monial property. They may likewise by such a declaration to the competent authority put the relations between themselves under the new law. Marriage contracts concluded before the coming into force of the new Code remain valid after that date, but are effective as against (c) This liability will continue to matiere de Droit Civil Federal, iv., 169). exist under the Federal Civil Code ; Under the Federal Civil Code the see arts. 207, 220. Where there is a wife is liable under any reijime : see community of property, the joint arts. 207, 220, 243. If there is a property is also liable. community of property, the joint -pro- (/) Liability for torts is regulated perty is likewise liable : art. "JUO. The by the Federal Code of Obligations, husband remains immune. arts. 50 et se<]., under which it has (y) See Federal Law of Execution been decided that a husband is not for Debts and of Bankruptcy, art. liable for torts committed by his wife: 219, and the commentaries of Weber see Morana r. Albrecht and wife and Briistlein and of Jtiger thereon. (Tribunal Civil deGteneve, August 1.5th, (h) See Burge, vol. ii., p. v. 188o; Ilevuo de la Jurisprudence en FEDERAL CODE — THE ORDINARY llfMIME. 617 third parties only upon condition that before that date notice thereof has been given to the competent authority for registration. A contract of marriage entered in a pubhc register under the existing law will be registered in the new register. Changes in the matrimonial regime which are caused by the coming into force of the new Code are subject, so far as the liability to third parties is concerned, to the rules of the Code relating to changes of rrgime (v). Federal Code. — By the provisions of the Code itself the spouses are subject to thercfiiine of combination of property (k), except in so far as they have otherwise agreed by marriage contract or have become subject to the extraordinary regime {I) ; and a marriage contract must adopt one or other of the regimes provided for in the Code {m) . The Ordinary Regime. — The general principles of this have been -described above {n). It may be added here that the conditions of the regime have been assimilated to those of the community of income and profits by means of a provision that one-third of any increase in the amount of the property of the spouses which may occur during the marriage belongs to the wife or her issue, but any loss is borne by the husband or his heirs unless it is shown to have been caused by the wife (o) ; but these rules may be varied by marriage contract. It is also open to the spouses to approximate the relation l)etween them to the unity of property {p) by agreeing (in the form of a marriage contract), within six months after any property is contributed by the wife, that such property shall become the husband's at the amount at which it is valued {q). The husband's power of disposition is limited by the provision that, except in so far as the property contributed by the wife has become his property, he may not dispose of proj^erty so contributed to an extent exceeding the necessities of ordinary administration, without the consent of his wife, which may however, in general, be presumed by third parties to have been given (r). To the extent (i) See final title of the Code, arts. many of the cantons was expressed in 9, 10, 11. the words " Frauengut darf weder {k) P. 611, above. wachsen noch schwindeu." (Z) Art. 178. {p) P. 612, above. (?«) Art. 179. {q) Art. 199. (?0 P. 611. (/) Art. 202. (o) Art. 214. The old principle in 618 EFFECT OF MARRIAGE ON PROPERTY — SWISS LAW. of the wife's agency for the common household she has likewise powers of administration and disposition (s) ; and the husband will be liable for debts contracted in the exercise of such powers (t); but the wife may not refuse an inheritance without the consent of her husband, from the refusal of which she may appeal to the guardian- ship authority («)• With respect to the amount of the property of each spouse, the burden of proof that anything is part of the wife's property is upon the spouse who maintains that it is (r), and either spouse may at any time require an inventory to be made, by way of j)ublic record, of the property contributed by him or her, and such an inventory is presumed to be correct if made within six months after the time when the property is contributed {y). The inventory may be combined with a valuation, which will be binding if publicly recorded, as regards the duty of either spouse to replace missing property, except in so far as any property has been alienated in good faith during the marriage for a less amount than that at which it is valued (^). The wife may require her husband to account to her at any time as regards the property con- tributed by him, and also to give security for it, subject to the rules relating to the avoidance of such security by the creditors as a fraudulent preference (a). Where debts for which the hus- band's propert}^ is liable have been paid out of that contributed by the wife, or rice versa, a claim to reimbursement arises, but cannot be enforced until the termination of the combination property (b). Upon the bankruptcy of the husband, or if execution is levied upon him for debts, the wife's claim for compensation for property contributed by her, after deduction of any set-off due to her husband, ranks as a debt, and if it is not met to the extent of half of its amount by the restitution of ])ro2)erty still in existence or by the realisation of securities, the remainder of the half is a preferred (s) Arts. 163—165, 200, 203. property contributed by her is pre- (<) Art. 206. 6Uiiied to be part of her contributed ((') Art. 204. For debts duo from in- property, lieritances accepted bj'horshe is Halile (//) Art. 197. U) the extcTit of lior whole property {'>:) Art. 15tS. •without regard to the husband's rights: {a) Art. 205. See Federal ]ja\v of art. 207. Execution for Debtsandof Bankruptcy, (.r) Art. 196. Anything 2)rocured arts. 285 — 292. during the marriage in replacement of (/*) Civil Code, art. 209. FEDERAL CODE — THE CONTRACTUAL lil^GIMES. 619 debt. This preference may not be renounced either wholly or in favour of a particubxr creditor (c). The Extraordinai-y Regime arises by operation of law where one of the spouses becomes bankrupt and the creditors are not paid in full, and also by judgment of a Court upon the application of either of the spouses or of a creditor of either who has levied execution for debt and not been satisfied {d). The husband is entitled to such a judgment when the wife is insolvent or refuses unjustifiably to give the consent required by law or by the matrimonial regime to his dispositions of the matrimonial property, or requires security for the property contributed by her ; and the wife is so entitled, if the husband does not properly provide for her maintenance or that of her children, or does not give security for the property contributed by her when required, or where he or the joint property is insol- vent (c). The extraordinary regime is the separation of projDerty. The Contractual Regimes are the community of property and the separation of j)roperty. A marriage contract may be made either before or during the continuance of the marriage (/), subject to the limitation created by the general provision that no arrangement between the spouses or change of regime may withdraw any property from liability for any debts of either spouse or of the community, for which it would otherwise have been liable {g). It must be made by public record and signed by the parties, and, if either of them is under age or inter- dicted, by his or her statutory agent, and is effective against third parties only in so far as it is entered in the register of matrimonial property. No person may enter into such a contract if he is deprived of discernment (/<)• With regard to marriage contracts (c) Arts. 210,211. —288. (d) A creditor whose debt is not (e) Civil Code, arts. 182 — 185. fully paid upon bankrujjtcy or execu- (/) Art. 179. tion is entitled to receive a certificate {(j) Ait. 188. of loss {Verlustschein, ade de defaut de (h) Arts. 180, 181, 248 — 251. Where hie»s, certificato di carenza di herd), any person against whom certificates which is equivalent to an acknowledg- of loss exist is about to contract a nient of debt, confers rights to attach marriage, either of the prospective property and to avoid gifts and other spouses may obtain a separation of transactions, and is not barred as property by entry before the celebra- against the debtor by lapse of time : tion in the register of matrimonial see Federal Law of Execution and pi'operty : art. 182. Bankruptcy, arts. 149, 265, 271, 285 620 EFFECT OF MARRIAGE ON PROPERTY SWISS LAW. made after the celebration of the marriage, it must be added that such a contract may not diminish tlie existing liabiHty of the property to third parties and is subject to the consent of the guardianship authority. The alteration or rescission of a marriage contract is subject to the same rules (?). The Community of Property may be general or it may be limited, either by the exclusion of particular items or classes of property, such as immovables, or by a restriction to income and profits (j). The excluded property will be subject to the rules relating to separation of property ; but it may also be agreed by marriage contract that it shall be subject to the rules of the combination of property, and such an agreement is presumed where the wife has given the husband the administration and enjoyment of the excluded property (/.•). The General Community of the Swiss Code is of a universal character, and so nearer to that of the German than that of the French Code, which, as we have seen, excludes certain classes of property. The Swiss community includes all the property and income of the spouses, and neither of them may dispose of his or her share (l). The costs of administration are borne by the joint property, which is administered by the husband, subject to the wife's powers of administration (?n) as agent for household purposes, and is liable for the ante-nuptial debts of both spouses (n), and for all other debts contracted during the marriage by the husband or as debts of the community by the wife (o). For such debts the husband is also personally liable, and any execution levied for such debts during the marriage is issued against him(jj). Any disposi- tions which are outside the ordinary course of administration require the consent of both spouses, which may, however, in ordinary cases be presumed by third i)arties (q). Upon the death of either of the spouses the survivor takes half the property of the community, and the other half, subject to the survivor's right of inheritance, passes to the heirs of the deceased ; (0 ArtH. 179, 181. for them: art. 219. U) Arts. 237, 239. (n) The wife is also liable for her {Ic) Arts. 237, 238. ante-nuptial debts: art. 220. (?) Art. 215. (o) Arts. 21G, 21it. (m) T)obts arisinj^ out of the exercise {]>) Art. 222. of tb is power arc borne by the common (7) Art. 217. property, and tbo lui.sband is also liable FEDERAL CODE — CONTINUED COMMUNITY. G21 but the survivor's right of inheritance is reduced, if he is unworthy to inherit, to so much as he would be entitled to claim in case of divorce (r). This mode of division may be varied by contract, but the issue of the deceased spouse will, notwithstanding any such contract, be entitled to one-fourth of the i)ro2)erty of the community existing at the time of death (s). Upon a division of the property of the community the surviving spouse may claim that particular property contributed by him or her shall form part of his or her share {i). A surviving husband is per- sonally liable for ail the debts of the community; a surviving wife may avoid liability by refusing her share of the property of the community, and even if she accepts she will not be liable for any particular debt which she can show that the property which she has received is insufficient to meet(u). Upon the bankruptcy of the husband, or if execution is levied upon property of the community, the wife has a claim for the return of the property contributed by her. This claim is privileged to the extent of one-half of its amount, and the privilege cannot be waived, either generally or in favour of particular creditors (x). During the continuance of the marriage neither spouse may refuse an inheritance without the consent of the other, but in case of refusal of consent he or she may appeal to the guardianship authority (//). Continued Community. — As under the German Code, a community of property may be continued by the surviving sjDouse in conjunc- tion with the children of the marriage, subject to the consent of the guardianship authority if any of the children are under age (z). Such a community includes all the existing property of the former conjugal community, together with the income and earnings of the parties, except reserved property ; property which devolves upon the surviving parent or upon the children by way of inheritance or any other gratuitous mode of acquisition is reserved to them, unless otherwise provided (a). So long as the (r) Art. 225, As to un worthiness to (m) Art. 227. inherit, see arts. 540, 541, and below, (x) Art. 224. The children have the Law of Inheritance ; as to rights in same rights where the communitj' i& case of divorce, see art. 154, and the continued: art. 233, chapter on that subject. (j/) Art. 218. (s) Art. 226. (z) Art. 229. (t) Alt. 228. {a) Art. 230. 62-^ EFFECT OF MARRIAGE ON PROPERTY SWISS LAW. children are under age the continued community is administered by the parent ; when they are of full age a different arrangement may be made by agreement between them and their parent (/;). A continued community may be dissolved l)y the parent at any time ; it is dissolved by operation of law upon his death or re- marriage, or u[)on his bankruptcy or that of the children ; and a creditor of any of the members of the community, who levies execution and is not satisfied, may also require a judgment of dissolution. Any or all of the children of full age may retire from the community at any time, or the guardianship authority may make a declaration of retirement of any who are under age ; and if either of the children becomes bankrupt, or marries, or gives rise to a claim by a creditor for a dissolution of the community, the remain- ing members thereof may require him to retire. They have the same right against the issue of a deceased child. If a child dies without issue his share remains part of the property of the com- munity, subject to the rights of heirs who are not members (c). Upon the dissolution of a continued communit}' or the retirement of a child the property of the community is divided according to its state at the time, and rights of inheritance from the deceased parent then become due () Art. 242, nounced by a Swiss writer as a mere 624 EFFECT OF MARRIAGE ON PROPERTY — SWISS LAW. by the competent public authority (q). Property may also be set- aside for this purpose by marriage contract (Ehesteucr, dot, dote), and such property is, unless otherwise agreed, subject to the rules of combination of property (r). Where, under the regime of combination of property or that of community of property, debts for which the joint property is liable are paid out of reserved property, or vice versa, a claim ta reimbursement arises, which may be set up during the continuance of the marriage (s). (q) Art. 246. is) Arts. 209, 223. (r) Art. 2-17. CHAPTER XII. EFFECT OF MARRIAGE ON THE PROPERTY OF THE HUSBAND AND WIFE UNDER THE LAW OF SCOTLAND. Comnmnion of Goods. — In Scotland, one of the legal rights con- sequent on the marriage was a communion of goods between the husband and wife. It was of a more limited character than that which exists under any of the systems of jurisprudence which have been already considered (a). Property of which it Consisted. — It did not extend to heritable jDroperty, as lands, houses, rights to tithes, or subjects which pro- duce annual profits, e.g., bonds for borrowed money, carrying interest, and therefore producing annual fruits, so long as the debt subsisted {h); but was confined to subjects which were of a temporary nature, and produced no yearly profits while they continued, and which were, therefore, said to be sinipUciter movable or immovable in all respects (c). Into the Communio Bonorum fell the movable estate of the husband, and, except in so far as it consisted of separate estate, from which the jus mariti had been excluded, or of para- phernalia, also the movable estate of the wife. The husband had the absolute control of all the goods in communion, during the marriage, and on the dissolution of the marriage within a year and a day, without the birth of a living child, the common property reverted to the survivor and the representatives of the deceased in the proportions in which it was contributed. It was, however, the practice to exclude this rule, whenever there was a marriage contract between the spouses, and it was definitely abolished by the (a) As to the history of the doctrine France to the Law of Scotland " (Re- of Communio Bonorum in Scotland, see port of Conference, p. 73). Eraser, Husband and Wife, i., pp. 648 (6) Ersk. Inst. b. 2, t. 2, s, 10 ; et seq.; Walton, Husband and Wife, Dunlop v. Grays (1739), Mor. Diet, p. 149 ; and a paper read by Professor p. 5770. P. P. Walton before the International (c) Stair-, Inst. b. 1, 4, ss. 17 dseq. ; Law Association, at Glasgow, in 1901 ; Ersk. Inst. b. 1, t. 6, s. 12. ■on "The llelationship of the Law of M.L. 40 626 EFFECT OF MARRIAGE ON PROPERTY — SCOTS LAW. Intestate Movable Succession (Scotland) Act, 1855 (fZ). Under the Communio Bonorum, the representatives of a wife predeceasing her husband had formerly a right to one-third or one-half of the goods in communion, according as there were, or were not, children of the marriage. This rule also was abolished by the Intestate Movable Succession Act, 1855(e). Moreover, since the Married "Women's Property (Scotland) Act, 1881 (/), the movable estate of a woman no longer passes, on her marriage, under the J(^s mariti of her husband. The Communio Bonorum., therefore, survives in Scotland only in the jus relictcE (f/), if the jus relicta is a survival of it at all (Ji). Jus Mariti. — Jus Relictae. — Bairns' Part. — The husband had at common law both a right of i^roperty over (jus mariti) and sole right of administering {jus administrationis) the subjects of this communion (i). The jus mariti was defined to be that right or interest arising from the marriage to the husband, in the mov- able estate, wdiich belonged to the wife either at the marriage, or was acquired by her stante matrimonio. It entitled the husband to receive all sums due to the wife which fell under the communion, to grant acquittances to the debtors, to sell, and even give, at his pleasure, her whole movable subjects, by any deed that was to take effect during the marriage, and such subjects might be attached by his creditors for payment of their demands (A-). He could not, however, and cannot, by any testamentary disposition, or donation mortis causa, prejudice the jus relictce, or widow's part, or the hairns' part(/). The former, when there are hairns, is a third, another third belonging to the hairns. If there be no hairns, the widow's part is one half ; if the wife die before the husband, the hairns' part is one half (m). The husband's jus mariti was first modified by the Conjugal (d) 18 & 19 Vict. c. 23, s. 7. But the two rights are, and ought to (), abolished, as to all marriages contracted after, and as noted hereafter, with certain exceptions, to a limited extent before the passing of the Act (July 18th, 1881) (j)). Where the jus viariti still exists, it carries with it its former consequences. Effect of Marriage on Property of Wife.^Marriage being, in fact, a legal assignation by the wife to her husband of her whole movable estate, any movable subject, which, after her death, might be discovered to have belonged to her, fell to the surviving husband (g). The fruits produced from heritable subjects, e.e/., the rents of land, or the interests of money, are movable, and of these the husband was as truly the proprietor as he was of any other of her movable subjects (r). Jus Mariti and Paraphernal Goods. — The jus waritidoes not extend to paraphernal goods, and the husband has no power over them. He cannot himself alienate them, nor are they liable for his debts (s). Paraphernal Goods. — The law of Scotland uses the term para- phernal to designate certain articles which continue the exclusive property of the wife, and do not pass under the jus mariti, notwith- standing the marriage. Vestitns.— Mundus Muliehris. — The paraphernal goods include the whole vestitus and mundus muliehris, i.e., not only the lady's body- clothes, and wearing apparel, but all the ornaments of dress proper to a woman's person, as, necklace, earrings, or arm-jewels, given by her husband to her at any time of her life, either before or stante the marriage. These are neither alienable by the husband nor affectable by his creditors {t). Articles which may be Used indiflFerently by Husband or "Wife. — Articles which may be promiscuously used by man and wife, e.g.^ watch, jewels, medals, plate, and even the repositories for holding, {n) 24 & 25 Vict. c. 86, s. 16. (s) Ersk. Inst, iUd., s. 15 ; Stair„ (o) 44 & 45 Yict. c. 21. Inst, ibid. ip) Ibid., s. 3, sub-ss. (1), (2). {t) Ersk. Inst., ibid. ; Dicks v. Massie (). A wife deserted by her husband, or living apart from him by his consent, may obtain judicial dispensation from the necessity of procuring her husband's consent to any deed relating to her estate (q). ' The Act also confers on the husband a right (jus relicti) in his wife's (r), and gives to children a right of legitim in their mother's (s), movable succession. Curtesy of Scotland. — The husband's interest in the rents and profits of his wife's real estate continues, even after the death of his wife, if there was a child alive of his marriage with her. This interest is called the curtesy of Scotland, and is the provision which the law makes for the husband out of the wife's heritage. It is defined to be a life-rent, given by the law to the surviving husband, of all the wife's heritage in which she died infeft, if there was a child of the marriage born alive (t) and which was heard to cry(?0. He may, immediately on the wife's death, enter into the posses- sion of her lands, without any such solemnity of service, or kenning, as is required in the terce. His right of curtesy is, upon her death, completed ipso jure (r). As he had, in consequence of [m) See Anderson v. Anderson's (/) Ersk. Inst. b. 2, t. 9, s. o'2 ; Stair, Trustee (1892), 19 Eettie, G84 ; Na- Inst. b. 2. t. 6, s. 19. As to curtesy bj' tional Bank of Scotland, Ld. v. Cowan the law of England, see p. 678, and (1893), 21 Eettie, 4 ; Adam v. Adam's Pollock and Maitland, llist. Eng. Trustee (1894), 21 Eettie, 67G. Law, ii., p. 417. {n) S. 1, sub-s. (4). (») Stair, Inst. b. 1, t. 4, s. 19 ; b. 2, [o) y. 1, sub-s. (o) ; and hgo post, tit. G, s. 19; Ersk. Prin., 20th ed., p. G51 p. 217; Eoberton ?-. Modorator of (;>) S. 4 and Schedule. General Assembly (1833), 11 8. 297. (?) f^- 5- {v) Ersk. Inst. b. 2, t. 9, s. 52 ; Stair,. (r) S. G. Sco;/M<, p. Go J. Inst. b. 2, t. 6, s. 19 ; Eraser, Husband («) S. 7; and sec /;os^ p. G.j4. and Wife, ii., 1124. husband's eight of curtesy. 633 his jus niai-iti, a right to the rents of his "wife's lands, sfcDttc inatri- nioin<\ he continues to retain that right after her death, hy an act of the law itself, although under another name (x). The curtesy is not affected by the Married Women's Property (Scotland) Act, 18810/). Conditions on which Curtesy Depends. — The husband's right of curtesy depends on the birth of issue, and not on the length of time the marriage has continued. It may have subsisted for twenty years, but if no child has been born alive of such marriage, and heard to cr}', there is no curtesy {^), although the widow, in that case, would be entitled to her terce. On the otlier hand, if there was born of the marriage a living child, he was and is entitled to the curtesy although the marriage might not have subsisted for a year, and although the child should have expired immediately after its birth, and either before or after the mother's death (^). The child born of the marriage must be the mother's heir, in order to entitle the husband to the curtesy ; for, if there be a child existing of a former marriage, who is to succeed to her estate, the second husband has no right to the curtesy while that child is alive, not- withstanding there should be also children born of the second marriage. The law confers this right on the surviving husband, as the father of an heir, rather than as the widower of an heiress (a). " Heritage." — " Conquest." — The term " heritage " is used, not in contradistinction to the movable estate of the wife, nor to express that the curtesy attaches on that part of her estate which is not movable, but in contradistinction to " conquest," that is, to real estate, which she has acquired by purchase, donation, or other singular title, and to designate those heritable rights to which she had succeeded as heir of line, tailzie, or provision to her ancestor, whether before or during the continuance of the marriage (h). Property acquired by Wife hy Singular Title. — There is no title to curtesy, or to any of its privileges, in respect of property acquired (.0) Ersk. Inst. b. 2, t. 9, s. 52 ; Stair, (o) Darleith r. Cauipbell (1702), Mor. Inst. b. 2, t. 6, 8. 19. Diet. p. Sll.'J ; Fount., December 1st, (ij) 44 & 45 Vict. c. 21. 1702; Ersk. Inst. b. 2, t. 9, s. 53; Stair, (z) Eeg. Maj. 1. 2, c. 58, s. 1 ; Stewart Inst. b. 2, t. 6, s. 19 ; Eraser, ad loc. cit., v.Anderson(1632), Mor. Diet. p. 3112; ii., 1121. Ersk. Inst., ^'bid., s. 53 ; Stair, Inst. (h) Ersk, Inst. b. 2, t. 9, s. 51. ibid. ; Ersk. Prin., 20th ed., p. 217. 634 EFFECT OF MARRIAGE OX PROPERTY SCOTS LAW. by the wife by a singular title, as purchase or gift(r). Where, however, the wife has been alioquin siicccssiira, a,nd there has merely been a j^^'^^ceptio luereditatis by a disposition to her, she is not considered as having possessed by a singular title (, (>, 7; Lords (1797), Mor. Diet. p. 4631, Ersk. Inst. b. 2, t. 9, s. 45. Appeii. ?wv. Foreign, n. 5 ; Ersk. Inst. (r) Ersk. Inst., ihid. b. 2, t. 9, H. 45 ; Stair, Inst. b. 2, t. 0, CONDITIONS OF TERCE — NOMINAL INFEFTMENT. 637 the other hand, whatever is exckidecl by the husband's seisin cannot affect the terce (s). What Debts prevail over Terce. — Such debts only as constitute a real burden on the terce lands will prevail over the terce, which is in no respect affected by the personal debts of the husband. Thus, neither an heritable bond nor a disi)Osition of lands granted by the husband, if death has prevented him from giving seisin to the creditor or disponee, can prejudice the terce, nor an adjudication which has not been completed by seisin before the husband's death, though a charge had been given on it to the superior, since an adjudication is no better than a legal disposition, until seisin proceed on it (t). It follows, therefore, that no terce is due out of lands in which the husband was not seised at his death ; except in the case of fraud or wilful omission («)• Fraud is presumed where the husband, having made no provision for his wife by marriage contract, divests himself in favour of his eldest son or other heir ; or where a father is by his son's marriage contract obliged to infeft him in certain lands, and has not fulfilled his obligation (x). But as the widow cannot in either of these cases be served to her terce, because it cannot be found by the inquest according to the exigency of the brieve, that the husband died infeft in the lands, her only remedy is a personal action against her father-in-law, or her husband's representatives. The onerous creditors, therefore, of the father-in-law or husband will, in a competition with the widow, be preferred to her in the lands out of which the terce is claimed (y). Exceptions to Eule that Eight to Terce depends on Husband's Infeftment in Fee. — The general rule, that the right of terce depends exclusively on the husband's infeftment in fee, is subject to exceptions (z). Nominal Infeftment. — Thus, where the infeftment, though ex facie absolute, is in reality nominal or in trust, the right of terce is (s) Ersk. Inst. b. 2, t. 9, s. 46. (u) Carrutliers v. Johnston (1706), {t) Ersk. Inst., ibid. ; Caiiyle v. Mor. Diet. p. 15,846 ; Fount, January Creditors (1725), Mor. Diet. pp. 147, 29tb, 1706 ; Ersk. Inst., ibid. 15,851; Campbell t'. Campbell (1776), (x) M. Aunandale v. Scott (1711), 5 Br. Sup. 627 ; followed in Boss- Mor. Diet. p. 15,848 ; Pount, Deeem- borougb V. Eossborougb (1886), 16 ber 1st, 1711. Eettie, 157 ; Eraser, Husband and {y) Ersk. Inst., ibid. Wife, ii., 1094. (2) Stair, Inst. b. 2, t. 6, s. 16, note(/;). 638 EFFECT OF MARRIAGE ON PROPERTY SCOTS LAW. excluded (a) ; or where the property has been only disponed in security of a debt, though absolutely, the disponee being merely under a personal obligation to re-convey, the right of terce belongs not to the widow of the disponee, but to that of the disponer, the disponee's infeftment being regarded as a trust for the disponer, subject to the burden of the debt (h). The right to terce, however, is not excluded by a disposition followed by actual possession, but not with infeftment (c). Widow of Keverser dying "before Redemption of Wadset. — The widow of a reverser who dies before the redemption of the wadset has no right to a terce out of the subject (r?). The widow's claim is a preferable burden on the lands even in the possession of a singular successor from the date of his purchase, and therefore he is entitled to retain part of the jmce till the subject is disencumbered (c). Greater and Lesser Terce. — The terce which is due out of lands already charged with a prior or subsisthig terce of the widow of some of the husband's ancestors or authors in the lands, is called the lesser terce, and the prior or subsisting one is called the greater terce. If the fiar, whose lands are already charged with a terce, should die, leaving a widow, who is also entitled to a terce, the last widow cannot claim her terce out of all the lands in which her husband died infeft, for a full third of them is, by an antecedent right, set apart for the first tercer. The last is entitled to the life-rent only of a third of the two-thirds which remain unaffected by the first terce. But on the death of the first widow, the lesser terce becomes enlarged, as if the first had never existed ; because after that period, the husband's seisin upon which the measure of the widow's right depends, is no longer burdened with any prior terce (/). Right of Widow as regards Servitudes, &c. — The right of the widow to the terce lands is as ami'le as that of the heir to the re- maining two-thirds, and therefore, if those lands have a right of (rt) Gumming v. King's Adv. (1756), {d) Mactloiigall v. Macdougall, July Mor. Diet. p. 15,854. But see Morris Srd, 1801, Fac. Coll. r. Tcnnant (1855), 27 Jur. 54G ; (p) Boyde r, Hamilton (1805), Mor. McLaren, "Wills and Suecession, p. 91. Diet. p. 15,874; Stair, Inst. b. 2, t. G, (/<) Bartlet v. Buchanan, February s. 10, note (t). 2l8t, 1811, Fac. Coll. (/) Beg. Mnj. 1. 2, c. 10, s. 04. (r) Macculloch v. Maitland (1788), Ersk. Inst. b. 2, t. 0, s. 47 ; Stair, Inst. Mor. Diet. p. 15,800; see also Monteir b. 2, t. 6, s. 10. V. ]}aillie (1773), Mor, Diet. p. 15,859. PROPERTY NOT SUBJECT TO TERCE. 639 pasturage or other servitude on a neighbouring tenement, the widow is entitled to a third of it as appurtenant to the lands in which the husband died infeft(|/), and her right is not confined tO' the lands themselves, but extends to the houses built on them, to the tithes of land when constituted by seisin, though tithes are in other respects considered as a separate subject from the stock, tO' infeftments of annual rent forth of lands, to rights in security, and to wadsets, whether proper or improper (//). In improper wadsets, the tercc is the life-rent of a third of the sum contained in the wadset. In proj)er wadsets, the tercer enjoys, in life-rent, a third of the wadset lands, while the right subsists, and after redemption from the husband's heir, a third of the redemption mone}' (/). If the husband had two manor j)laces, or country seats, the widow was entitled to the second, or worse of the two. If he had but one, it was, according to the Pu'). But he may be liable even for the principal sums contained in such bonds. First, when the universum jus of the wife, heritable as well as movable, has been assigned to him by the marriage contract; for if the husband be liable to pay his wife's movable debts, in consequence of the legal right which he acquires by marriage to her movable estate, he ought, upon the same principle, to be subjected to her whole debts when he accepts of a present conventional right to her whole estate (c). 2ndly, the husband, where he is lucratus, is bound for his wife's debts, of whatever kind, in quantum lucratus est, if she has no separate estate for the payment of her creditors ; for the principle on which that obligation is founded is equally strong, whether it be applied to debts which carry interest, or to those that are simply movable (d). Rents of Wife's Property. — Where the husband, /»?•. 634, 631. {g) Fraser, Husband and Wife, i., 595; and cf. Bankruptcy Act, 1856 (19 & 20 Vict. c. 79), s. 147. (70 SeeErsk. Inst. b. 3, t. 8, 35, 36 ; Praser, Husband and Wife ii., 1427; McLaren on Wills and Succession, 606. (i) Or to the survivor of them and " their heirs," or " the heirs of the survivor." In these cases, the wife, on surviving her husband, will take the whole fee, and her heirs will exclude those of her husband : Perguson v. McGeorge (1739), Mor. Diet. 4202 ; Boyd v. King's Adv. (1749), Mor. Diet. 4205 ; Burro wes v. McFarquhar's Trustees (1842), 4 Dunlop, 1484. AJiter, where the sub- stitution is to " the heirs of the marriage." These are the husband's heirs, and the widow has merely a life- rent : Neilson v. Murray (1732), 1 Pat. 65 ; MacKellar v. Marquis (1840), 3 Dunlop, 172; Madden v. Currie's Trustees (1842), 4 Dunlop, 749. {k) Murray v. Blair (1739), 1 Pat 251 ; Wordie v. Sampson (1750), Mor. Diet. 4207 ; Sinclair v. Anderson (1771), Mor. Diet. 4241 ; Smith Cunninghame V. Anstruther's Trustees (1869), 7 Macjih. 689. Or given as "tocher" : Gairns v. Sandilands (1671), Mor. Diet. 4230 ; Smith Cunninghame v. Anstruther's Trustees, ttbi supra. (/) In cases of doubt as to which of the spouses was intended to have the fee, regard is had to the question which has the power to dispose of the property ; an absolute power of dis- posal will carry the fee : Dunfermline (Earl of) V. Callender (Earl of) (1676), Mor. Diet. 4244 ; so will a conveyance to "heirs and assignees": Fead v. Maxwell (1709), Mor. Diet. 4240. (/«) Stair, Inst. b. 2, t. 3, s. 41 ; Laws V. Tod (1697), Mor. Diet. 4236. G46 EFFECT OF MARRIAGE ON PROPERTY SCOTS LAW. l^eiiig called ; if the sum were insecure, it might be consigned to be re-employed, to the wife in life-rent, and to the heir in fee (»), Even a clause in a bond, importing a sum borrowed from husband and wife, and payable to the longest liver of them in conjunct fee, and to the heirs betwixt them, and tlieir assignees, whom failing to the heirs and assignees of the last liver, was found to constitute the husband fiar and the wife life-renter, although she was the survivor, whereby her heirs of line (failing heirs of the marriage) became heirs of provision to the husband, and liable to his debts (o). And a clause in a contract of marriage obliging the husband to take the " conquest to him and his future spouse, and the heirs betwixt them, whilks failing, the heirs of the man's body, whilks failing, the wife's heirs whatsoever," was found not to constitute the wife fiar, but life-renter, and the husband fiar, thus failing heirs of the marriage and of the man's body, the wife's heirs of line were heirs of provision to the man ; for by this clause of conquest, it is evident that the means were to come by the man (j)). Yet an obligement by the man, " bearing that, whatsoever lands or sums of money he should purchase during the life of him and his future spouse (their present debts being first paid), the wife should be secured therein, in conjunct fee ; and in case of no issue or children, the one half therefore to be disponed as the wife shall think fit," was found to make the conquest divide betwixt the heirs of the man and the wife, and that her power to dispone the half was not a personal faculty, but made her fiar in that half, and took oft' the presumption of the preference of the husband, seeing no mention was made of the heirs of either party {q). Conjunct Fees to Strangers. — "Where an interest is made, or any right conceived in favour of two strangers, in conjunct fee and life- rent, and their heirs, the two are equal fiars during their joint lives, as if they had contributed equally to the purchase. But after the death of the first, the survivor has the life-rent of the whole ; and after the survivor's death, the fee divides equally between the heirs of both. If, however, it be made to husband and wife, and the (n) Kinross v. llunthill (1661), Mor. 4230. Diet. p. 8262 ; Stair, Inst. b. 2, t. 3, (p) Craiistoun r. Wilkinson (1667), s. 41. Mor. Diet. p. 4227 ; Stair, Inst., ibid. (o) Stair, Inst., (7*/'/. ; Justice v. (7) Dunfermline (Earl of) ik Stirling (166S), Mor. Diet. 4228; Callender (Earl of) (1676), Mor. Diet. GainiH i\ Sanililands (1671), Mor. Diet. 4244 ; Stair, Inst., ibid. HUSBAND AS PERSOXA DIGNIOB. 647 longest liver of /Ac/;;, and their heirs, the law presumes that the husband's heirs are intended, and the wife takes only a life-rent (?•)• The general rule is, that the husband is, from the prerogative of hig sex, the sole fiar, as the j)erso)ia (Ugnior (s). Relaxation of Rule as to Persona Dignior. — This rule has been, in modern times, relaxed in favour of the wdfe, although the principle still obtains, that, in doubtful cases, the preference is always to be given to the husband, so that the fee is in him, and a life-rent only in the wife. When the property comes by the wife, the fee is, from presumed intention, generally held to be in her {t). If, however, it be conveyed nomine dotis, the fee is in the husband, because what- ever is given in tocher is his property. So, if his heirs be sub- stituted, the fee is in the husband, according to the maxim, fiar cujiis hcEredihus maxima prospicitur (n). On the other hand, if the wife's heirs be substituted, the fee is in her {x). In the cases referred to, the property came by the wife, and the fee was held to be in her (ij). If the right be taken to the wife's assignees, the law considers her as fiar, for it is the essence of a fee to dispose of the subject at pleasure, and those heirs are deemed to be the most favoured on whom the last termination falls (z). Where there are no inter- mediate substitutions between the heirs of the marriage and the heirs of the spouse, the spouse on whose heirs the succession is settled in the last place is the fiar, because they are presumed to (r) Stair, Inst. b. 2, t. G, s. 10 ; Ersk. siqjra, p. 645, u. (t). Inst. b. 3, 8, s. 36. (x) Angus v. Ninian (1733), Mov. (s) Stair, Inst., ibid.; Ersk. Inst., Diet. p. 4244 ; Fead !-. Maxwell (1709), ihid.; Johnstons. Cunningham (1667), Mor. Diet. p. 4240. Mor. Diet. p. 4199. (y) Grays v. Wood, &c. (1773), Mor. (i) Ersk. Inst., ibid.; Wordie v. Diet. p. 4210 ; Paterson &c., v. Balfour Sampson (1750), Mor. Diet. p. 4207 ; (1780), Mor. Diet. p. 4212 ; Eollo v. Wilson V. Forrest & Maxwell (1759), Shaw (1832), 11 Shaw, 132; Dewar v. Mor. Diet. p. 4208. Mackinnon (1825), 1 W. & S. 161 ; (m) Earneslaw v. Douglases (1705), Stair, Inst., ibid.; Ersk. Inst., ibid. Mor. Diet. p. 4223; Elliot's Crs. (z) Ersk. Inst, zizt^. ; Fead i'. Max- V. Elliot (1720), Mor. Diet. p. 4244; well, supra. An unlimited power to Edgar v. Edgar (1727), Mor. Diet. borrow is not equivalent to a power p. 4202 ; Edgar v. Sinelair (1713), of disposal ; Boustead v. Gardner Mor. Diet. p. 4201 ; Watson v. John- (1879), 7 Eettie, 139; Bryson v. ston (1766), Mor. Diet. p. 4288; Bruce Munro's Trustees (1893), 20 Eettie, and Henderson v. Henderson (1790 986. —1791), Mor. Diet. p. 4215 ; and see 648 EFFECT OF MARRIAGE OX PROPERTY — SCOTS LAW. be the most favoured. Thus, a sum of money assigned by the wife in tocher to her husband, in conjunct fee and life-rent, and the hairns of the marriage, whom faihng, to the wife's heirs, was adjudged to belong to the wife {a). But where there are inter- mediate substitutions, that spouse is deemed fiar whose heirs are first called after the heirs of the marriage, though the succession should be settled ultimately upon the heirs of the other, because the heirs first called are undoubtedly favoured above those who are only substituted in default of the first {h). Although the husband is thus preferred to the fee, in feudal rights, and in the quasi-feiida of bonds taken jointly to him and his wdfe, yet, in the rights to movable goods, the heirs of the husband and wife succeed equally (c). Donations inter Conjuges, — Deeds granted by the wife to the husband, or by him to the wife, which import a donation, are indeed valid, but they may be revoked at any time during the donor's life {d). If, however, they are executed by the husband or wife to a third party, they are not revocable, although they may be gratuitous {e). Neither is the ratification by the husband of a disposition granted by the wife in favour of her children of a former marriage revocable (/), because these are not donations between the two spouses. But when the only real intention of a deed is to convey a gratuitous right from one of the spouses to the other, although it be granted nominally, or in trust, to a third party, it is, notwithstanding this disguise, subject to revocation (^). On the other hand, an obligation, though it should be granted by (a) Ersk. Inst., ibid. ; Angus v. which is unequal : Glasford v. Dow- Ninian (1733), Mor. Diet, p. 4244. ling (1634), Mor, Diet. p. 6106; Jar- {J>) Ersk. Inst., ibid. ; Cranston v. dine v. Currie (1830), 8 Shaw, 937. Wilkinson (1667), Mor. Diet. p. 4227 ; (/) Hamilton v. Bain (1669), Mor. Elliot's Crs. i;. Elliot (1720), Mor. Diet. Diet. p. 6107; Murray v. Murray p. 4244. (1671), Mor. Diet. o689 ; Muir v. (c) Ersk. Inst., ibid.; Bartilmo v. Stirling (1663), Mor. Diet. p. 6107. Hassiugtou (1632), Mor. Diet. p. 4222. {(j) Sanders v. Dunlop (1728), Mor. {d) The common law of Scotland as Diet. p. 6108 ; Scott i-. Cranston (1776), to donations between husband and ibid. ; Stewart /•. Mitchell (1769), Mor. wife is saved by s. 8 of the Married Diet. p. 6100 ; Eoggo v. Watson (1769), Women's Property (Scotland) Act, Mor. Diet. p. 6102 ; Watson r. Gordon 1881 (44 & 45 Vict. c. 21). (1774), Mor. Diet. p. 6103; Steven r. (e) Unless the conveyance to a third Dunlop, February 1st, 1809, Fac. Coll. ; party is intended merely as a cloak and sec above, n. (e). for a donation, the consideration for DONATIONS ISTEl} COXJUGES, WHEN REVOCABLE. 649 one of the spouses directly to the other, and even really intended for the benefit of the grantee, is, nevertheless, irrevocable, if it contain a right even gratuitous in favour of a third party (/<). It would seem, therefore, that a pledge by the wife of her parapher- nalia, as a security for a debt contracted by her husband, which, in effect, amounts to a donation by her to her husband, cannot be revoked, because, by the pledge, the husband's creditor acquires a direct interest (/). Donations, when Revocable. — The donations which are revocable are grants proceeding from the mere liberality of the donor without any antecedent cause or obligation. But those which are mutual remuneratory grants between the spouses, made in con- sideration of each other, are not revocable, if there be any reason- able proportion between the value of the two (A). The equality of the deed, or of the grant, must not be too scrupulously weighed. The leaning is to support mutual deeds, though they should seem unequal (/). Unilateral Deeds. — An unilateral deed will be sustained where it is remuneratory and the grant not excessive (w). Provision for Wife, — As it is the husband's duty, where there has been no previous written contract, to make a reasonable (u) provi- sion for his wife, in the event of her surviving him, such provision is not revocable ; and if it should be immoderate it would be revoked only quoad ejccessuni (o). But where the interests of the (/i) Heisleid f. Lindsay (1591), Mor. Eettie, 1286; Beattie's Trustees v. Diet. p. 6087. Beattie, &c. (1884), 11 Eettie, 840. (/) Clerk v. Sharp (1717), Mor. Diet. (m) Liudoris v. Stewart (1715), Mor. p. 5996; Ersk. lust. h. 1, t. 6, s. 29; Diet. p. 6126, i'. " Husband and Wife," Stair, Inst. b. 1, t. 4, s. IS. div. x., ss. 3, 4, 5, 6, 7. (^•) Chisholm v. Brae (1669), Mor. {n) I.e., "reasonable" as at the Diet. p. 6137; Ersk. Inst. b. 1, t. 6, date of the dissolution of the marriage, s. 30 ; Stair, Inst. b. 1, t. 4, s. 18. A and it is as at that date that the value renunciation by a wife of her legal or of the rights of the spouses is to be conventional rights, unless in exchange estimated : Eraser, Husband and Wife, for a fair equivalent, is a revocable ii., 928. donation: Eae v. Nielson (1875), 2 {o) Short and Biruie r. Murray Eettie, 676; Cooper v. Cooper (1888), (1724), Mor. Diet. p. 6124. This was, 13 A. C. 88. however, a special case, inasmuch as (/) Hepburn v. Brown (1814), 2 the husband had reserved his own life- Dow, p. 342 ; Mitchell v. Mitchell's rent. See Dunlop v. Johnston, infra, Trustees (1877), 4 Eettie, 800; Mel- p. 650, n, () Dirl. 368; Ersk. Inst., /t/W. A ling "• Crawfurd (1716), Mor. Diet, man cannot, however, by post-nuptial Gill. A married woman may by the contract, make a provision to take law of Scotland, as well as by that of effect sUiide matrimonio to the detri- England, make an effectual gift of her ment and defeating of his creditors : separate income to her husband, with Leai-mouth v. Miller (1875), L. E. 2 this difference, that by Scots law she Sc. & Div. 438. And see Eae v. Niel- tas the privilege of revoking the son (1875), 2 Eettie, 676 ; Jardine v. donation, even after her husband's Cun-ie (1830), 8 Shaw, 937 ; Fraser, death, and reclaiming the subject of Husband and Wife, ii., 938. her gift in so far as it has not been (7) Afacpherson v. Graham (1750), consumed. Tlio same circumstances Mor. Diet. 6113, as exi)laiiiod in Dun- which are in England (see p. 722) held lop I'. Johnston (1867), L. E. 1 Sc. & to imply donations between husband Div., ]>r.r Lord Colonsay, at ]). 116; and wife are sufficient to sustain a Kilk. Husband and Wife, n. 16. similar inference in Scotland. But a REVOCATION OF DONATIONS INTER COXJUGES. 651 contract of marriage between labouring persons, providing that the longest liver shall hrulk all, has been found to be revocable, as donatio inter riruiii et ttxoron, where the whole property of any consequence, both at the date of the contract, and at the dissolution of the marriage, consisted of a house belonging to the husband (/)■ Ever}' bond or disposition granted by the husband to the wife is not presumed to be gratuitous, for many instances occur in which a husband may become bond fide his wife's debtor, e.g., by inter- meddling with such of her effects as fall not within his jus mariti, &c. If it were to be held that the husband could not by any deed or declaration establish a charge against himself, in such cases the consequence must be, that the wife would be under the necessity of accepting one for her curator, who could not by any deed effectually bind himself to account for his intromissions. In a question, therefore, concerning the validity of such a bond or obligation, the mention in the recital of any probable occasion by which he became his wife's debtor, is sufficient to support it as onerous and not revocable by the grantor, if the fact be not disproved by legal evidence (»)• Revocation of Donations inter Conjuges. — Donations between hus- band and wife may be revoked either expressly or tacitly. They are expressly revoked by an explicit declaration of the donor's will to revoke. Where the donation is constituted by writing, it ought also to be revoked by writing. This revocation may be signed etiam in articulo mortis, and at whatever time it may have been signed, whether upon death-bed, or in a state of health, there is no necessity for the donor to make it known to the other spouse (»)• A donation may be tacitly revoked by any deed of the donor incon- sistent with the gift, e.g., if the donor make over absolutely to another the subject of the donation, for he is truly understood to resume the property, and in the character of the proprietor, to transfer the right to another (.r). But a right of annual rent, or other security, with which the donor has charged the subject to Avife who allows lier husbaud diiiiug Property Investment Co. v. Cowe, &c. a long course of time to deal with the (1877), 4 Eettie, 695. income of her separate estate as if it {t) Steven v. Dunlop, February 1st, were his own money cannot revoke 1809, Fac. Coll. money hand fide consumed in this («) Ersk. Inst. 1, t. 6, ss. 30, .'31. manner: Edwards v. Cheyne (No. 2) {x) Ersk. Inst., Hid..; Inglis v. (1888), 13 A. C. 385 ; and cf. Standard Lowry (1676), Mor. Diet. 6131. 652 EFFECT OF MARRIAGE ON PROPERTY SCOTS LAW. a creditor or any third person, imports not a total revocation of the gift, for the law, which presumes always in duhio for the donation (x), considers the donor to have in that case resumed the property to himself only in so far as was necessary for charging the subject with the rights granted to the third party. The donee takes the res donata subject to the burden (y). Eevocation is not presumed from a disposition omnium honorum being made by the donor in favour of a stranger {z), for the general clause in such a disposition cannot be construed to include any special subject of which the grantor had formerly divested himself («). No such presumption arises from the donor having subsequently contracted a debt. Creditors, subsequent to such donation, if the debtor has no other estate sufficient to pay their demands, may plead upon the faculty of revocation competent to him, which the law will transfer to those creditors from the debtor, if he cannot be prevailed on to revoke voluntarily (?>), but the representatives of the donor cannot plead upon debts subsequently contracted as a tacit revocation of the gift (c). It has been decided that the husband's right of revoking a contract of voluntary separation from his wife cannot be attached by his creditors. The wife's provision under such contract having been heritaljly secured by the husband while solvent, is effectual in a competition with the creditors, there being no suspicion of fraud {d). Defeasance of Donations inter Conjuges. — Although a donation between man and wife is not null, yet the donee holds it under the tacit condition that it may be defeated by the donor during his life. The donee cannot, therefore, alienate the subject, nor charge it with any burden to the prejudice of the donor, who, upon his revocation, resumes the full property of the subject, free from the consequences of all the intermediate deeds of the donee in favour of the creditors, or singular successors of the latter, rcsolnto enlmjure dantis, resolvitur jns acvipioitis (c). (x) See note (v) on preceding page. casje : AValkoi's Executors i\ Walker (?/) Kiuloch V. Rait (1674), Mor. (187S), 5 Eettie, 9()o. Diet. p. 11,345; Johustone's Trustees (o) Ersk. Iiist., b. 1, t. 0, s. 31. V. Johnstone (189(5), 23 liettie, 538 ; {h) Ersk. Inst., ibid. Ersk. Inst., ibid. (c) Ersk. Inst., ibid. (z) Handyside v. Handyside (1699), {d) M'Gregor's Trustee «•. M'Gregor Mor. Diet. p. 11,349. The question January 22nd, 1820, Fac. Coll. is, however, one of intention in each (e) Ersk. Inst., b. 1, t. 6, s. 32. jrS EELTCTuE. 653 Right of Revocation Personal to Donor. — This right of revocation is personal to the donor, and therefore, if he himself (/) do not exercise it, his heirs or re^jresentatives cannot (//), and the subject of the donation becomes, after the donor's death, the absolute property of the donee, morte doiiantis donatio confirmatur {h). But creditors of the donor may revoke even after his death (/). Effect of Ratification by Wife. — Eatifications by the wife, although they bar reductions founded on the force or fear of the husband, da not exclude her right of revoking donations which she has made^ or of setting aside deeds which she may have granted to third parties on the head of violence or menaces used against her by the grantees (j). Effect of Dissolution of Marriage. — If the marriage were dissolved by death within a year and day, and there had been no child of the marriage born alive, all grants made in consideration of the marriage formerly became void and things returned to the same condition in which they were before the marriage (/»•)• But now under the Movable Succession Act, 1855, where a marriage is dissolved before the lapse of a year and day from its date by the death of one of the spouses, the whole rights of the survivor and of the predeceaser are to be the same as if the marriage had subsisted for that period (Z). On the dissolution of the marriage the surviving husband becomes the irrevocable proprietor of the tocher, and the wife, in case she survive, is entitled to all the provisions secured to her in that event, whether legal or conventional. Where the interests of the spouses have not been regulated by marriage articles they are entitled to certain rights by the disposition of the law itself. Jus Relictae. — Legitim. — Jus Relicti. — Besides those of curtesy and terce, which have been already considered, a particular share of the movable estate of the husband falls to the surviving wife in virtue (/) The curator bonis of an insane son (1886), 14 Eettie, 163. person may exercise the right of re- (./) Gordon v. Maxwell (1678), Mor. vocation for him : Blaikie v. Milne Diet. p. 6144 ; Richardson v. Michie (1838), 4 Dunlop, 18. and Marshall (1685), Mor. Diet. (g) Dunlop v. Greenlee's Trustees p. 6147 ; Borthwick v. Scott (1724), (1863), 2 Macph. 1 ; (1865), 3 Macph. Mor. Diet. p. 6149 ; Ersk., b. 1, t. 6, (H. L.) 46 ; Edwards v. Cheyue (No. 1) s. 35. (1888), 13 A. C. 373. (A) Ersk. lust., b. 1, t. 6, s. 38. (70 Ibid. (/) See ante, p. 626 ; 18 & 19 Vict. (/) Honeyman and Wilson v. Robert- c. 23, s. 7. 654 EFFECT OF MARRIAGE OX PROPERTY SCOTS LAW. of her jus relicUc, and another to the children in the right of leriitim. And now a surviving husband takes the same share and interest in his deceased wife's movable estate {jus relicti) which is taken bj' a widow in her deceased husband's movable estate, and children are entitled to lef/itim out of their mother's movable property (/?0- Alimony of Widow. — "When the widow's legal provisions of terce and jus relictcs are insufficient, the Court will grant her an additional aliment out of her husband's estate (?i)- As the widow upon the husband's death has no present fund for the subsistence of herself and her family, she has a claim against her husband's representatives for alimony from the day of his death to the first term of paj-ment of her provision, whether legal or conventional. Its amount is to be fixed with reference not to the extent of that provision, but to the husband's quality and fortune and the number of servants left by him in his family when he died (o). She has also a legal claim to mourning for her husband suitable to his quality (p), and in case of a posthumous child she may recover from the husband's representatives the expense incurred by her on the occasion of the birth or baptism of the child (q). But none of those articles, except the widow's mourning, can be claimed if her husband's estate be insufficient for the payment of all his onerous creditors (r). If the wife survive, the paraphernal goods continue her property and cannot be attached by the husband's creditors. If the wife die first, they go to her children or her other next of kin (s). The parties may, by their marriage contract, renounce the provisions made by the law, and by it regulate the respective interests which they shall take in the property of each other. Construction of Marriage Settlements. — It may be useful to make (m) 44 & 45 Vict. c. 21, ss. 6, 7. Reps. (1863), 1 Macph. 1147. (h) Thomson v. McCullocli (1778), {2>) Wilkie v. Morrison (1765), Mor. Mor. Diet. p. 434 ; Young v. Camp- Diet. p. 5923 ; Ersk. Inst., b. 1, t. 6, bell (171)0), Mor. Diet. p. 400 ; Smith s. 41. V. Smith, March 11th, 1812, Fac. ((?) Kerr v. Hastie (1671), Mor. Diet. Coll. p. 5022 ; Ersk. Inst., ibuL (o) Scot !'. Korr (1713), Mor. Diet. (?•) Ersk. Inst., ihid. ; Sheddan i-. p. 5916; Boewell v. Boswell (1737), Gibson, May loth, 1802, Fac. Coll. ; 1 Mor. Diet. p. 5916 ; Palmer?,'. Sinclair, Bell's Coram, p. 679. Juno 27th, 1811, Fac. Coll. ; De Lonaj' (s) Ersk. Inst., //»/(/. And see ante, (Baroness) niul Others v. Oswald's p. 627. MARRIAGE CONTRACTS — ORDINARY PROVISIONS. 655 some fe^Y observations on the construction of the ordinary marriage settlements and on the legal import of certain provisions which they contain. A provision by a husband to his ^Yife of the life-rent of all his goods and gear movable has been held to exclude her legal right to the property of the third or half of his movables, for the life- rent of the whole is presumed to have been granted in full satisfaction of her jus rciicUs (t). But as a general rule no provision to a wife will exclude her jus relktce unless she is a party to the deed making it, or else, in the full knowledge of all the facts, she homologates the excluding deed (it). A provision to her for her life-rent use of all the goods and gear w4iich shall be acquired by the husband is to be understood onl}^ of free gear, deductis dehitis, and therefore the husband's creditors are not thereby excluded from attaching the subject of that provision (x). Ordinary Provisions in Marriage Contracts, — According to the ordinary provisions in a marriage contract, the father settles the lands or other subjects expressed in it upon himself and his wife, in conjunct fee and life-rent, and on the heirs of the marriage in fee. If there be sons of the marriage, the eldest is the sole heir of provision, or of the marriage, where the subject provided is heritage. In the case of daughters only, all of them are heirs-portioners of provision. If, in a marriage contract providing an heritable subject to the heirs male of the marriage, a special provision be granted to a daughter, in default of, or failing such heirs male, the daughter is entitled to it, though a son should exist of the marriage, unless he also shall survive the father, for nemo potest esse lueres viventis. The plain intention of the parties by such a stipulation is, that the daughter shall have the right, unless the subject of the provision shall actually devolve upon the son, as heir male, on his father's predecease (ij). Effect of. — Heirs of a marriage are more favourably regarded than heirs substituted in a simple destination, for the latter, being {t) Young V. Buchanan (1664), Mor. Smith (1849), 12 Dunlop, 276. Diet. p. 6447 ; Eiddell v. Dalton (1781), (x) Smith v. Muire (1668), Mor. Mor. Diet. p. 637 ; Ersk. Inst., b. 3, Diet. p. 9858; Ersk. Inst., ibid. t. 3, s. 30. (y) Maconochie v. Greenlee (1780), (u) Hope V. Dickson (1833), 12 Mor. Diet. p. 13,040, January 12th, Shaw, 222 ; Faulds v. Faukls' Trustee 1780, Fae. Coll. ; Ersk. Inst., b. 3, t. 8, (1843), 5 Dunlop, 483 ; Thomson v. s. 38. 656 EFFECT OF MARRIAC4E ON PROPERTY SCOTS LAW. gratuitous, gives only the hope of succession, and may be altered by the maker, or any of the members who succeed before the substitute ; but marriage contracts are onerous deeds, by which the bride and her friends stipulate that special provisions therein men- tioned shall be made good by the father to the heir, or other issue of the marriage, in consideration of the tocher or fortune brought with her. The heir of a marriage, therefore, unites two distinct characters. He is not only heir, but quodammodo creditor to his father. By the marriage articles, the father is under an imj)lied obligation not to defeat those iDrovisions by any gratuitous deed^ and therefore the heirs in whose favour the provision is made have an action against the father, if the subject of the provision has been exhausted by onerous creditors, or if he has done any deed to the prejudice of his obligation to discharge incumbrances or to make their provisions effectual in the event of his death (z) ; or they may set aside gratuitous deeds made by him to their jDrejudice upon the Statute 1621, even although they should have been granted in favour of the heir's own mother (a), or of a second son of the same marriage (/>). For this purpose, the heir of a marriage need not serve heir to his father, the grantor of the deeds which are challenged (c). Spes Successionis. — Although the father, when marriage contracts are expressed in these general terms, is restrained from making gratuitous deeds to the prejudice of the heir of the marriage, yet the heir's right is not a right of proper credit, but of succession, whether the provision be of money or of land (d). If, therefore, a father become bound to pay a particular sum to the children of the marriage, at the first term after the decease of himself and his wife, the children have merely a right of succession (c). Being only (2) Fraser v. Fraser (1677), Mor. Fac. Coll. Diet. pp. 12,859, 12,944 ; Fothering- (0) MoncriefC v. Moncrieff (1759), ham V. Fotheringham (1734), Mor. Mor. Diet. p. 12,871; Porterfield v. Diet. p. 12,929; Macintosh r. Maciii- Gray (1760), Mor. Diet. p. 12,874; tosh (1717), Mor. Diet. p. 12,881 ; Og-ilvy v. Ogilvy, December 16th, Ersk. Inst., b. 3, t. 8, s. 38. 1817, Fac. Coll. ; Douglas r. Thomson (a) Carnegie v. Clark, &c. (1677), (1870), 8 Maej^h. 374. Mor.Dict. p. 12,840; Ersk. Inst., iWc/. {d) 1 Bell's Comm., 5th cd., 639; {h) Fea V. Trail (1718), Mor. Diet. Ersk. Inst., ibid., s. 39. p. 12,926; Dykes v. Dykes, February (e) Strachan r. Straehan (1754), Mor. 9th, 1811, Fac. Coll. ; Ilyslop ?■. Dick- Diet. p. 996; 5 Br. Sup. 274; Fac. son, November 15th, 1S21, Fac. Coll. ; Coll. 1, n. 109 ; Ersk. Inst., ihid. AVoofl r. Miller, December 4th, 1823, father's power of administration. 657 heirs of provision, they cannot come in competition with their father's onerous creditors, notwithstanding his undoubted solvency at the time of the settlement (/). Nor is it material in that case whether the sum be or be not actually lent according to the father's obligation of provision (g). The father is understood to reserve to himself the fee, notwithstanding such provisions, and, of course, retains the power to charge the subject with just debts, and even to alienate it for onerous causes (h). Sale of Settled Property. — Upon the sale by the father of the estate settled by his contract of marriage and the purchase by him of other lands with the price, the heir is not entitled to the purchased lands as a snrrogatum, neither can he claim as a creditor of his father for the value of the estate sold, but at his father's death can recover only the price which had been actually obtained (t). Father's Power of Administration. — The father, notwithstanding his settlements upon the heir of the marriage, also retains a power of administration, so as to subject him to such reasonable restric- tions as may be requisite for the preservation of the family (/i). Thus, if the heir had plainly discovered a disposition by his prodigality to dissipate, &c., property, the father might limit its enjoyment with irritant and resolutive clauses, provided that these clauses were pointed against him alone, and that the order of succession settled on the other heirs of the marriage was preserved {k). A father, being bound by his contract of marriage to dispone certain lands, and such other lands as he should acquire during the marriage to the heirs of the marriage, and the son being prodigal and bankrupt, conveyed the lands to the son's children, burdened only with a life-rent to him. In a reduction at the instance of the son's creditors, the Lords sustained the deed, and assoilzied (/). (/) Napier v. Irvine (1697), Mor, "Wemyss (Earl of) v. Haddington (Earl Diet. p. 12,898; Fount, July 24th, of), February 28th, 1815, Fac. Coll.; 1696, and June 17th, 1697. Hyslop v. Dickson, November loth, ((/) Graham v. Eome (1677), Mor. 1821, Fac. Coll. Diet. p. 12,887. (A) Craik V. Craik (1728), Mor. Diet. {h) Cunyughame v. Cunynghame p. 12,984; Trail r. Trail (1737), Mor. (1804), Mor. Diet. p. 13,029; Fother- Diet. p. 12,985 ; Ersk. Inst. b. 3, t. 8, ingham v. Fotheringham (1734), Mor. s. 39. Diet. p. 12,929. (/) Thomson v. Thomson (1762), Mor. (/) Cuuninghame r. Cunninghame, Diet. p. 13,018; December 8th, 1790, December 20th, 1810, Fac. Coll. ; Fac. Coll. ; Farquhar - Gordon v. M.L. 42 658 EFFECT OF MAREIAGE OX PROPERTY — SCOTS LA^V. Obligation to Settle Estate not Discharged by a Tailzie. — The ques- tion whether a father has sufficiently discharged an obligation to settle an estate upon the heir of the marriage by making the settlement in the form of a tailzie, containing prohibitory, irritant, and resolutive clauses, seems to have been set at rest by an unanimous opinion of the Court that it was incompetent to do so(»0- Liability of Cautioner. — Although settlements executed in the ordinary form are postponed to the onerous debts of the grantor, notwithstanding they have been subsequently contracted, yet they are effectual against a cautioner who has engaged himself in the marriage contract, for the father's performance of his obligation ; and the heir of the marriage has his claim against the cautioner, not as heir to his father, but as creditor to the latter («)• AVhere a father executes a bond of provision to a child actually existing, whether such child be the heir of a marriage or not, a proper debt is thereby created, which, though gratuitous, is not reducible at the instance of prior onerous creditors if the father was solvent at the time of granting it (o) . Provisions may Confer Jus Crediti. — Marriage settlements may be so expressed as to give to the heir a proper right of fee in the land estate, or a proj^er right of credit in the special sum provided to him, and if secured by proper diligence, or perfected by seisin, may give the heir a preference against all the subsequent deeds of the father, even onerous {p). Thus in a money provision, if the father be bound not merely to provide the heir or children of the marriage in a sum, but to make payment of it at a term which may arrive before the father's death, or if the provision be made in return for renunciation of legal rights, the children have a proper jus cndid, which entitles them Gordon (1790), Mor. Diet. p. 13,028 ; Diet. p. 12,938; rount, December Ewing V. Ewing (1799), Mor. Diet. 19tb, 1707; Fotheringham v. Fotber- p. 12,997; Spiers v. Duulop (1778), ingham (1734), Mor. Diet. p. 12,9-11; Mor. Diet. p. 13,026. Crawfurd v. Kennoway (1(377), Mor. (?n) Munro /'. Munro, February Diet. p. 12,934. 13th, 1810, Eac. Coll.; Douglas v. (o) Frsk. Priu., 20th ed., p. 479. Johnston, December 5th, 1804, Fac. {}>) Douglas v. Douglas (1724), Coll.; Graham v. Coltrain (1743), Mor. Diet. p. 12,910; Creditors of Mor. Diet. p. 13,010; Stewart v. Marjoribanks ?'. Marjoribauks (1082), Stewart, March 2nd, ISlo.Fae. Coll. Mor. Diet. p. 12,891; Wilson's Trus- (h) Dickson v. Mill (1707), Mor. tees ?•. Wilson (1800), 18 Duulop, 10i»(>. CLAUSE OF CONQUEST. 659 to come in competition with the father's onerous creditors, and the preference will be determined according to the nature of their rights, and the priority of the diligences used upon them (q). Clause of Conquest. — The conquest, during the marriage, or a certain portion of it, is frequently settled either on the heir, or on the issue of the marriage. In such provisions, the term " conquest " bears a sense different from that in which it is used in questions between the heir of line, as contra-distinguished from the heir of conquest. It is applied to the estate which the father may acquire during the marriage by his own industry, or by singular title, and not as heir to an ancestor, or as executor to a person deceased, or as legatee, or jure mariti (r). It consists only of such addition as has been made during the marriage to the father's property. If he has sold one estate, and with the price purchased another, the price of the estate sold must be first deducted from the purchase (s). An obligation of conquest does not bind the father so strongly as a si)ecial provision. The subject may be affected not only by the father's onerous or rational deeds, but even by those which are gratuitous, provided they be granted for small sums, as in favour of a child of another marriage (Q. But any deed merely gratuitous, alienating the whole or a considerable part of the conquest to the prejudice of the heir to whom it was provided, which has no rational consideration to support it, is to be regarded as granted in fraudem of the provision of the contract, and is therefore subject to reduc- tion. The father retains this ample right of fee, as to the conquest, notwithstanding the dissolution of the marriage, in favour of the issue of which the conquest was provided. No action, therefore, (q) Creditors of Easter-Ogle I'. Lj'on (r) Stair, lust. b. 3, t. 5, s. 52; (1724), Mor. Diet. p. 8150; Heudersou Mercer v. Mercer (1130), Mor. Diet. V. Henderson (1759), Mor. Diet. p. 3054; Eae v. Eae, January 23rd, 1810, 12,919 ; Mactavish I'. Mactavisli (1787), Fac. Coll.; Ersk. Inst. b. 3, t. 8, Mor. Diet. p. 12,922 ; November 15tli, s. 43; Diggens v. Gordon (1865), 3 1787, Fac. Coll.; Mackenzie v. Mac- Macpli. 609 ; affirmed (1867), 5 Maci^h. keuzie (1792), Mor. Diet. p. 12,924; (H. L.), 75. February 2nd, 1792, Fac. Coll. ; (s) Stair, ibid., s. 52. Douglas V. Douglas (1724), Mor. Diet. (<) Cowan v. Young, &c. (1669), 12,910; Gordon v. Murray (1833), 11 Mor. Diet. p. 12,942; Murrays v. Shaw, 368 ; Herries, &c. v. Brown Murrays (1677), Mor. Diet. p. 12,944 ; (1838), 16 Shaw, 948 ; Goddard v. Cumming v. Kennedy (1697), Mor, Stewart (1844), 6 Dunlop, 1018. Diet. p. 6443. 42—2 660 EFFECT OF MAPvRIAGE ON PROPERTY — SCOTS LAW. can be sustained, at the suit of the child entitled to the conquest, against the father himself to obtain a liquidation thereof, and con- sequently the conquest is estimated quoad the father, as at the time, not of the dissolution of that marriage, but of his death (u). It is not now usual to make provisions of conquest in marriage contracts, but where it is done a sum is generally stated which, being deducted from the free estate at the dissolution of the marriage, shall be held to show the amount of conquest (i-). Clause of Siil)stitution. — A clause of substitution is that by which the succession of any subject is declared by the grantor to devolve on the substitute in default of the institute, and such clauses are frequent in marriage contracts and bonds of provision to children (y). Substitutes called after the heirs of the marriage have only a spes succcssionis (z). Clause of Return. — A clause of return is that by which a sum in a bond, or other right, or any part of it, is provided in a particular event to return to the grantor and his heirs. It is, therefore, truly a species of substitution, by which the grantor provides that the right shall, in default of the grantee, go not to a third person, as in a common substitution, but to himself (a). Words with Fixed Legal Meaning. — Words which have a fixed legal meaning ought, when used in settlements or securities, to be understood in that meaning ; thus, where lands are provided in a marriage contract to the heir male, and in default of him, to the heirs female, to be procreated of the marriage, the appellation of heirs female, which is a known legal term, denoting the heirs at law after the failure of the lineal male issue, must be so understood as to prefer the daughter of a son of the marriage to the eldest immediate daughter, because the immediate daughter is not in such case the heir-at-law. Yet as all entails ought to be governed by the will of the maker, when clearly expressed, if it shall appear from other expressions in the deed that he did not, by that (u) Anderson v. Anderson (lOS-l), {y) Ersk. Inst. b. 3, t. 8, s. 44. Mor. Diet. p. 12,960; Foiint, Novem- (,•) Macdonald v. Hall (1893), 20 ber 27th, 1684 ; Cruickshanks v. Eettie (H. L.) 88 ; McMurdo's Trustees Cruickshanks (168o), Mor. Diet. r. McMurdo (1897), 24 Eettie, 459; p. 12,964 ; Fount, February 24th, 1685. Turner's Trustees v. Turner (1S97), 24 (.r) Ersk. Inst. b. 3, t. 8, s. 43, n. (a) ; Eettie, 619. Iluutor's Trustees v. Campbell (1839), (o) Ersk. uhi cit. siqira, s. 45, 1 Ituiilop, 817, SECOND MARRIAGE. 661 desci-iption, mean an heir female, in the proper sense, the certain intention of the maker ought to prevail over the legal meaning of the term (h). Upon this ground, lands provided to the hainis of a marriage do not descend to the heir in heritage, though the subject provided be heritable, but divide equally among all the children, if no division be made by the father, because the appellation of hainis is a known term, used to denote the whole issue, and is, therefore, so interjjreted as to cut off the exclusive right of the eldest son (c). Apportionment of Provisions. — As a general rule provisions granted to the children, or issue of a marriage, give no right of credit to each child in particular till the death of the father, before which period the right does not become special to any one of them. For the right is given faudlice, to the whole issue taken together, and, therefore, though the father is, by his obligation, restrained from executing gratuitous deeds to strangers extra fa)nilia>ii, he has a power jure parentis, of distributing the provision among his own issue in such proportions as he judges proper (J)- He may convert the subject, if it be movable, into a land estate, descendible to the eldest son alone, j^rovided he burden it with provisions to the other children (e). If the power be not exercised, equal division takes place (/). A disposition by a father after marriage, to which he was not bound by the marriage articles, if it be granted to children yet unborn, is no better than a simple destination, which, therefore, can neither oblige the father himself nor stand good in a com- petition with creditors ; for such disposition is not only gratuitous, because not grounded on a marriage contract, but is given without any special regard to the disponees, who were at the date of the right iionentia (//). Second Marriage. — Upon the dissolution of the marriage there (?^) Dalyell, &c. r. Dalyell, May 30th, 3 Macph. 514; affirmed (1867), 5 1809, Fac. Coll. ; Ersk. Inst. b. 3, t. 8, Macph. (H. L.), 151. s. 48, n. 475. (e) Campbell v. Campbell (] 738), (c) Kiuloch V. Xiuloch (1(J78), Mor. Mor. Diet. p. 13,001. Diet. p. 12,841 ; Fount, January 11th, (/) Ersk. Inst. b. 3, t. 8, s. 49 ; Siv- 1678. Wright v. Dallas, January 27th, 1824, (d) Edmonstone v. Edmoustone Fac. Coll. ; Stein v. Stein (1826), 5 (1706), Mor. Diet. p. 3219. But see Shaw, 101 : "Watson v. Ecbertson, &c., Beattie's Trustees v. Cooper's Trustees (1837), 15 Shaw, 586. But see Douglas (1862), 24 Dunlop, 519; Romanes v. i-. Douglas (1724), Mor. Diet. jj. 13,002 Eiddell, &c. (1865), 3 Macj^h. 348 ; (a verj' excej^tional case). Hunter's Trustees v. Carleton (1865), {(j) Ersk. Inst. b. 3, t. 8, s. 49. 662 EFFECT OF MARRIAGE OX PROPERTY — SCOTS LAW. is no restriction as to the period when the survivor may again marry. A father may, notwithstanding a prior marriage contract, settle a jointure upon the second wife, or make provisions on the issue of the second marriage, which will be effectual against the heir of the first, though such settlements or provisions encroach on the subject provided to him by his mother's prior contract, if the father had no other fund out of which he could provide for the second wife and children (li). Such provision, must, however, be suitable to his circumstances, for he cannot make such exorbitant settlements on a second marriage as would too much encroach upon the prior jus crediti acquired by the children of the first (i) . If the provision be not exorbitant, the heirs of the first marriage are liable, as heirs, to fulfil the settlement made by the father upon the wife and issue of the second marriage. But if it exceed the just measure of his circumstances, they are, qua creditors to their father, entitled to challenge it as a fraudulent or gratuitous deed (A). Xot only the heir of the first marriage may reduce a settlement in favour of a second marriage, quoad e.rcessum, but the heirs of the wife of the first marriage may reduce it, in case any sum or subject should be left to them by a substitution in the first marriage contract (/). Where onerous or rational deeds are thus granted by a father, diminishing the provisions to the heir of a marriage, he has an action of recourse against the father, in case he shall afterwards acquire a separate fund which may enable him to fulfil both obligations (/u)' The heir of the marriage for the time being and his parent acting jointly have the full disposal of the estate. Accordingly the heir may release his parent of the provision and the parent may propel the estate to the heir. But the heir cannot, without his parent's consent, transfer his right to a third party so as to be effectual should he predecease his parent (//). (//) Ersk. Inst., ihiJ., p. 12 ; AVilson's p. 12.899 ; Fount, J-anuary liith, 1()97. Trustees v. Wilson (ISiO), IS JJuulop, (m) Ersk. Inst. b. ;5, t. S, s. 42 ; 1096. Henderson v. Henderson (IToO), Mor. (t) Bruce v. Glen (1701), Mor. Diet. Diet. p. 12,928, p. l;i,Ci;}n. (//) ^Nfaconocliio r. Greenlee (1780), (/;) Wood ('. Miller, December 4th, ]S[or. Dict.p. i;{,040; Ersk. Trin., 20th 1M2;J, Fac. Coll. cd., p. 480. {J) Laws V. Tod (10971. Mor, Diet. BANKRUPTCY. 663 Bankruptcy. — To secure the marriage contract provisions against reduction in the event of the father's bankruptcy they must, if con- tained in an ante-nuptial contract, be reasonable in amount (o) ; if in a post-nuptial contract, the provisions must not only be reason- able, but have been granted during the solvency of the father and take effect only after his death (p). {(>) 1 Bell, Comm., p. (537 ; Carplin v. Clapperton (1867), 5 Macph. 797 ; AVatson v. Grant's Trustees (1874), 1 Eettie, 882 ; Ersk. Prin., 20tli ed., p. 558. (}i) Dunlop V. Macph. (H. L.) Miller (187.5), 2 Ersk. Prin., ilnd. Jolinston (1867), o 22 ; Learmouth v. Eettie (H. L.) 62; CHAPTEE XIII. EFFECT OF MARRIAGE ON THE PROPERTY OF THE HUSBAND AND WIFE UNDER THE LAW OF ENGLAND (aND IRELAND). The law of England does not allow as the consequence of marriage any such disposition as the commuuio honorum or cont- munio qucsstuuni. The law of Ireland is the same as that of England as regards both the common law and the general character of the statute law (a). Different Kinds of Property. — There are some distinctions peculiar to English law which formerly materially affected the interests of the husband and wife in the property of each other. The division of property into real and i^ersonal is accompanied by other divisions. By the law of England, personal property comprises something more than movables. It adopts, therefore, the term "chattels," to include everything which is not wholly real estate. Again, chattels are distributed into two kinds, chattels personal and chattels real. In the latter are included terms for years of land, the next presentation to a church, estate by a statute merchant, statute-staple, elegit, or the like, and these are called real chattels, as being interests issuing out of or annexed to real estates, of which they have one quality, viz., immobility, which denominates them real, but want the other, viz., a sufficient legal indeterminate duration, and this want it is that constitutes them chattels. Property in chattels personal is either in possession or in action. Choses in action are debts, arrears of rents, legacies, residuary personal estate, money in the funds, trust funds, stock, shares, patents, copyrights, all personal chattels not in possession {b) (a) The following Acts apply in Ire- (oG & o~ Vict. c. G3), 1907 (7 Edw. YII. land: Fines and Recoveries (Ireland) c. 18). See also 40 & 41 Yict. Act, 1 834 (4 & 5 Will. IV. c. 92); Married c. 56, s. Go, and 45 & 46 Vict. c. ;3!), Women's Eeversionary Interests Act, ss. 7 (1)— (3), 5, as to acknowlodg- 1857 (20 & 21 Vict. c. 57); Married ments. Wonien'sProportyActs, 1870 (33 & 34 (/<) Colonial 13ank r. Whiimey Vict. c. 03), 1874 (37 & 3S Vict. c. 50), (188G), 11 App. Cas. 440. 1882 (45 & 46 Vict. c. 75), 1893 AT COMMON LAW. 665 which are recoverable by action at hiw, or by suit in equity. "When they are recoverable in a Court of Law, they are called legal, and when they can only be recovered by suit in a Court of Equity, they are called equitable choses in action. Choses in action, with the exception of negotiable securities, are not assignable at law, but the}- are in equity for valuable consideration. Since 1873 debts and legal choses in action can be assigned, if the assignment is absolute, and not purporting to be by way of charge onl}', by writing under the hand of the assignor on giving express written notice to the debtor, trustee, or person liable, subject to equities which would have had priority over the right of the assignee by the former law (e) . At Common Law. — The j)rovisions of the common law on this subject are now only applicable to the case of a wife married before January 1st, 1883 (d), in respect of onl}^ such property of hers as accrued to her before that date, not being wages or earnings acquired by her after August 9th, 1870 (e), in any employment, occupation or trade carried on by her separately from her husband or any money or property acquired by her through the exercise of any literary, artistic, or scientific skill and all investments of them ; nor being property of a wife deserted by her husband or who has obtained a judicial separation from him with regard to which she has obtained a protection order from the Court (/') ; nor her separate pro- perty under the recent statutes as described hereafter. But these statutes have not wholly superseded the former law, and reference is still necessary to it as being not only part of the present law, but also as being the basis of the English system, and of the derivative systems of many of the British Colonies and the United States. Heads of Subject. — The subject is here treated under the following heads : (i.) Eights of the husband in the property of the wife, (a) during her life, (b) after her death (/'). (ii.) Eights of the wife in the propert}' of the husband, (a) dower out of real property, and (b) personal property. (c) Judicature Act, 1873 (36 & 3" Yict. c. 75). Yict. c. 66), s. 25 (6) ; Walker -t-. Brad- (e) M. W. P. A., 1870 (33 & 34 ford Old Bauk (1884), 12 Q. B. D. 515, Yict. c. 93). 517 ; Eucj-cl. Eng. Law, tit. Assign- (/) Matrimonial Causes Act, 1857 nient of Choses in Action, i., 555. (20 & 21 Yict. c. 85), s. 21. (-0 M. AY. P. A., 1882 (45 & 46 (/) Seep. 666. 666 EFFECT OF MARRIAGE ON PROPERTY ENGLISH LAW. (iii.) The power of the wife over her own propert}^ during her life, and after her death. (iv.) Ante-nuptial debts and acts of the wife and separate legal personality of the spouses (//). (v.) The wife's separate estate. (vi.) Restraint on anticipation. (vii.). Separate trading by wife. (viii.) Contracts of married women. (ix.) Contracts and proceedings between husband and wife. (x.) Torts of the wife during marriage. (xi.) Pin money. (xii.) Paraphernalia. (xiii.) Other proprietary relations between spouses. (xiv.) Gifts inter conjugcs. (xv.) Marriage settlements. I. (a) Rights of Hiistand in Wife's Property dm-iug her Life. — Choses in Possession. — At common law marriage is an absolute gift to the husband of all the goods, personal chattels, and estate, of which the wife was actually and beneficially possessed at the time of the marriage, in her own right, or which at that time were in the posses- sion of a third person ; and of such other goods and personal chattels as come to her during the marriage (V///). He may dispose of them without her consent in his lifetime, or by his will, and if he make a disposition of them, they will vest in his personal representatives. The only exception to this rule is the wife's paraphernalia or personal ornaments given to her which the husband could dispose of in his lifetime, but if not they passed to his wife. So if they accrue dnrinrj the coverture, the interest vests in the husband, though he has not possession of them before the death of his wife {li). Choses in Action. — Marriage is only a qualified gift to the husband of his wife's choses in action — viz., upon condition that he reduce them into possession during its continuance ; for if he die before his wife, witliout having reduced such property into possession, she, and not his personal representatives, will be entitled to it (/). (f/) Sec p. TOO. Yates (18-1-1), 12 M. iSc W. Sou; {yfj) Co. Litt. ;K)0 a. Negotiable Lush, OS. instniments are not chosos in posses- (/') Com. Dig. Bar. & Feru. E. 3. fion of the husband : Sherriugton r. (/') Co. Litt. 351 ; Scawen v. Blunt husband's eight to acquire wife's fropekty, GG7 But if the husband survive the wife, and exercise his right of administering to her estate, he will be entitled to all her personal estate, which continued in action, or unrecovered, at her death. And although he die before all such property be recovered, yet his next of kin will be entitled to it in equity (J). A mere intention to reduce the wife's clioses in action into posses- sion will be insufficient to bar her right to them by survivorship. The acts by which this can be effected must be such as to change the property in them, or in other words, to divest the wife's right, and to make that of the husband absolute, such as a judgment recovered by him and his wife, or his receipt of the money, or a decree in equity for payment of the money to him, or to be applied for his use (k). To constitute possession the husband must have absolute dominion over it for some amount of time without any concur- rence of the wife (/). A wife who has obtained a judicial separation from her husband is entitled absolutely to her choses in action (reversion in personalty) not reduced into possession though she has jjreviously mortgaged them jointly with her husband (;»). The same rule holds good where the marriage has been dissolved, or the wife has obtained a protection order on the ground of the husband's desertion {)i). On the wife's death her undisposed-of choses in action went to the husband (as they still do) (o). Right of Action to Acquire Wife's Property. — The husband may commence proceedings at law in his own name only, for all the personal estate in action which accrued to his wife, or to her and him jointly, during the marriage, and in respect of all personal contracts or covenants made or entered into with them during that period (p). (1802), 7Ves.294; Langham r.Xenney & Tud. L. C. Eq. 157. n. (1797), 3 Ves. 467 ; Jakeman's Trusts (m) 20 & 21 Vict. c. 35, s. 25 ; 21 & 22 (1883), 23 Ch. D. 344, 351 ; Lush, 60. Vict. c. 108, s. 8 ; Ee Insole (1865), (,/) Squib V. Wyn (1751), 1 P. AVms. L. E. 1 Eq. 470, 1 Wh. & Tud. 165, n. 378 ; Humphrey v. Bullen (1737), (h) 1 AVh. & Tud. 166, n. ; citing 1 Atk. 458; Elliott v. Collier (1747), statutes and cases. 3 Atk. 526 ; Lush, 66. (o) 1 Wh. & Tud. 703. (A') Packer r. Wyndham (1715), Pre. {j>) Hilliard r. Ilambridge (23 Car. Ch. 412, 418. I.), Aleyn, 36 ; Owen, 82 ; 2 Mod. 217 ; (/) Nicholson v. Drury Buildings Aleberry y. Walby (1718), 1 Stra. 230 ; Estate Co. (1877), 7 Ch. D. 48 ; Lush, Cro. Jac. 399; Ankerstein v. Clarke 69. For what is reduction into posses- (1792), 4 Term Eep. 616 ; Philliskirk v. sion, see Hornsby r. Lee (1816) 1 Wh. Pluckwell (1814), 2 M. & S. 393. 668 EFFECT OF MARRIAGE OX PROPERTY — ENGLISH LAW. In actions arising from contract subsequent to the marriage, where the promise is made to the wife alone, or to the husband and wife, and where the consideration moves wholly or in part from the wite, or where she is, as it has been expressed, the meritorious cause of action (q), the husband may assent to give her an interest in the contract, and join her with him in the action. But for such debts, &c., as were due to the wife before the marriage, and continue unaltered, as the husband cannot disagree to her interest in them, and as he has only a qualified right to them — viz., by reducing them into possession during her life — he is unable to maintain an action for such proj^erty, without making his wife a party (qq). But the case of a bill of exchange or promissory note, payable to the wife dam sola, is an exce^jtion to this rule (7-). If, however, the contract, or nature of the demand, be altered after the marriage, as by taking a new security, the husband ma}^ sue alone (s). A Court of Equity will not permit agreements entered into between her, or her friends acting for her, and her husband, pendente lite, to be obligatory u2:)on her, and an arrangement which, pending a suit, may be so made, by which it is agreed that, ui)on certain terms, he shall have the residue of her property, will not, without the sanction of the Court, bind her. Notwithstanding, therefore, such an agreement, if the title of the husband's representatives rest solely upon it, the wife's right by survivorship will take place (t). If the husband receive the money, legacy, or duty, which was owing to his wife, or if he alone, or he and his wife, authorise a person to receive, who actually obtains it, either of those receipts will change the wife's interest in the property, and be a reduction of the chose in action into the possession of the husband, divested (7) Eose V. Bowler (1789), 1 H. Bl. & S. 17G. 108 ; Dippers oi Tunbridge Wells Case (/■) M'Xeilage v. IloUoway (1818), (1709), 2 W^ila. 414, 424. 1 B. & Aid. 218; Ex parte Barber (77) Hardy y. Robiiiauu (14 »t 15 Car. (1821), I G. & J. 1. II.), 1 Keb. 440; Tirell v. Bonnet, (5) Yard v. Ellard (2 Ann.), 1 tSalk. (18 Car. II.), 2 Kob. 89 ; Nov, 70; 117. Miluer v. Milne3(179()), 3 Term i:.p. (0 Macauley i-. I'liillips (1798), 627; Eumsey v. George (1813), 1 M. 4 Yes. 1.3. wife's equitable CHOSES IX ACTION. 669 of her title to it by survivorship, and he may maintain an action for the mone}' so received by the person so authorised (ii). But the husband's receipt or possession of his wife's choses in action must be in the character of husband, and not of trustee or executor in order to defeat his wife's title to them upon surviving liim in). Husband's Power over Wife's Personal Property. — With respect to the wife's personal property, over which her husband has the sole and complete legal power of disposition, he may, as it seems, assign it at his pleasure. The interests, among others, which are assignable at law are, the personal chattels of the wife in possession, legal terms for years, elegits upon judgments issued before the marriage; and he has, in equity, the same power of assigning terms held in trust for her, and debts, or sums of money secured by such terms, or decrees made in favour of the wife, dam sola, for money (.r). Money due to the wife, and secured by a mortgage in fee, is not equally in the husband's power, as money secured by a mortgage for a term of years. The husband cannot dispose of the former. The estate, continuing in the wife, carries to her surviving the money along with it (//). The husband may transfer money in the funds, standing in the name of his wife (z), and may indorse bills of exchange, or pro- missory notes, given to her before or after marriage (a). He may also assign a mortgage for a term of years vested in her (/>). With respect, therefore, to property of this description, he has an absolute power of disposition. Her Equitable Choses in Action. — With respect to her equitable choses in action — i.e., trust funds, legacies, debts due to trustees for her, and other property which must be sued for in equity — if they be immediately recoverable by suit, the husband may assign them for valuable consideration, and such assignment will be binding, if {u) EoU. Abr. 342, 350 ; Moor, 452 ; p. 665, ante; Lush. 58, 59. Goulds, 160; Doswell v. Earle (1806), {i/) Free. Ch. 418. 12 Ves. 473 ; Baker r. Hall (1806), (z) Pringle v. Hodgson (1798), ihi(J. 497. 3 Yes. 619 ; Wildman v. Wildman (x) Eoper, Husband and Wife, c. 5, (1803), 9 Ves. 176. s. 2; Pre. Ch. 418 : Lord Carteret i: {a) 1 Eoper, 214. Paschal (1733), 3 P. Wms. 200. Cf. [h) lUL, 177. C70 EFFECT OF MARRIAGE OX PROPERTY ENGLISH LAW. she survives. But if he assigns them without vaUiable considera- tion, her right by survivorship will continue (c). Her Legal Choses in Action. — "With respect to the legal choses in action of the wife — i.e. those of her choses in action which are recoverable at law — the husband has not the power of assigning them at law, with the exception of mortgages for terms of years, and negotiable securities. If the husband assign them, the assignee standing in his place may, during his life, sue for them, in the name of husband and wife. But if the husband died without having released them, and before the assignee has reduced them into possession, the legal right of action will survive to the wife (d). Of those parts, therefore, of the wife's personal estate, whether in possession or remainder, to which her husband's assignment passes a complete le) Hornsby v. Lee (1816), 2 Mad. 1 Wh. & Tud. L. C. Eq. 161—169. 16 ; Purdew v. Jackson (1824), 1 Euss. {j) Married Women's Eeversionary Eep. 1 ; Honner v. Morton (1828), Interests Act, 1857 (20 & 21 Yict. 3 Euss. 65 ; 1 Wh. & Tud. L. C. Eq. c. 57. 162. (A-) In re Eicom, [1894] 1 Ch. 303. G72 EFFECT OF MAKRIAOE ON PROPERTY ENGLISH LAV,'. bind her interest in equity (0, but not by will, including proceeds of sale of real estate in reversion. Acknowledgment is no longer required except for reversionary personal interests accruing before 1883 (m). It has been observed, that the husband may assign, at his pleasure, such choses in action of the wife as are assignable at law ; and that persons claiming such species of his wife's personal property, by conveyance from him, either as volunteers, or for valuable consideration, will be entitled to hold it exempt from any right of his wife to a settlement, since a Court of Equity will not interfere at her instance, in order to procure a provision for her out of such assigned property («). Wife's Equity to a Settlement. — But if the husband, or his assignee, have no title at law to recover the wife's property, as where it is an equitable interest, and consequently recoverable only in a Court of Equity, that Court will (except in the instance of a trust-term) (o) impose terms upon them. It will stipulate, as the consideration for lending its assistance, that a provision shall be made for the wife and children out of the fund, or out of the husband's other property (2)). The wife's equity to a settlement now only arises where the marriage took place before 1883 and the propert}^ accrued before then (q). This equity to a settlement was, after the Judicature Act, enforced by the King's Bench Division as well as the Chancery Division (?•). It attaches to pure personalty, terms of years equitable or legal, but not an estate in fee, nor property limited to husband and wife for their joint lives and the life of the survivor, nor a (/) Encycl. Eng. Law, vi., G49 ; see Guepratte v. Youug (1851), 4 Greenhill v. N. B. Merc. I. C, [1893] De G. & Sm. 217. 3 Ch. 474; and see In re Batclielor (o) Sir E. Turner's Case (1681), 1 (1873), L. E. 16 Eq. 481; her survivor- Vern. 7.; Pitt v. Hunt (1681), 1 ship preferred to right of retainer. Vern. 18 ; Tudor r. Samyne (1692), 2 (m) Lush, 77. Yern. 270. (n) Oswald V. Probert (1795), 2 Yes. (p) Milner v. Colmer (1731), 2 680, 682. As to assignment of P. Wms. 639. ■wife's choses in action generallj', see (7) See Elibank ?•. ^[ontolieu (1801), Homsby v. Lee (1816), 1 Wh. & Tud. 5 Yes. 737 ; Murray v. Lord Elibank L. 0. Eq. 152—169, nn. ; and as to the (1804) 1 Wh. & Tud. L. C. Eq. 621 rights of husband and wife in the — (ioS, nn. ; Lush, 77 — 7S, for the hitter's reversionary interests in per- subject generally. S'inalty if the wife is domiciled abroad, (?•) Ency. Eng. liaw, vi. 649. wife's equity to a settlement. 673 husband's estate by the curtesy (s). It attaches to legal and equitable interests equally (0- This is an equity originating in and personal to the wife ; so that, if she be entitled to an equitable interest and dies, leaving a husband and children, the latter being unprovided for by settle- ment, and he files a bill to recover such interest, his children cannot oblige him to make a provision for them out of it (»). The right of the children, however, attaches on a bill being filed during the wife's life, relative to the trust-fund. If the wife dies pending the suit they will have the benefit of it, and may prosecute against the husband an order for laying before the master proposals for a settlement, which had l)een obtained in the wife's lifetime and which she had not waived before her death (f)- The children's right, however, under such order continues, according to Lord Eldon's opinion, to be at the disposal of the wife, until the business be completed, so that, if between those periods she appear in Court, and consent that her husband shall have the fund wholl}^ and absolutely, it will be so ordered, and the children deprived of any provision out of it (w). The separate examination of the wife is necessary to give effect to this arrangement {x). The Court, when its ward is married without its leave, requires from the husband a settlement more strict in its terms than would be imposed in any other case (y). It is governed by the circumstances attending each case, in the proportion of the (s) Hanson??. Keating (1844), 4 Hare, provided for: Conington v, Gilliatt, 1 ; Boxall v. Boxall (1884), 27 Ch. D. [1876] W. N. 275 ; 1 Wh. & Tud. 637. 220; In re Bryan (1880), 14 Ch. D. (iv) Murray v. Lord Elibank(1804), 516; Smith v. Matthews (1860), 3 10 Ves. 84,88, 90; 1 Wh. & Tud. De G. F. & J. 139 ; Encyclo. Eng. 644 u. ; Lloyd v. Williams (1816), 1 Law, Yi., 649; Lush, 81, 82. See 1 Mad. 450. See also, in relation to the Wh. & Tud. 632. wife's consent, 1 Wh. & Tud. L. C. Eq. {t) Fowke V. Draycott (1885), 29 644, nn. Ch. D. 996, 1003. (x) Ihid. If wife is abroad, her (m) Scriven v. Tapley (1765), Amb. consent must be taken by commis- 509 ; Lloyd v. Williams (1816), 1 Mad. sioners from the Court or a competent 462 ; Stienmetz v. Halthiu (1820), Court abroad — e.g., before a foreign IG. &J. 67; Lush, 84. magistrate: Minet v. Hyde (1788), (i') Ibid., and Howe v. Jackson 2 Bro. Ch. 663. (1783), 2 Dick. 604; Lush, 84. Chil- (.y) Like v. Beresford (1797), 3 Yes. dreu by foi'mer marriage can be so 506. M.L. 43 674 EFFECT OF MARRIAGE ON PROPERTY ENGLISH LAW. interest or capital of the wife's fortune which it allows to the husband (z). If, however, a man of no propert}' marr}^ a ward without the leave of the Court, and fortune is his only object, in such a case the Court will visit his offence by not permitting him to have any part of it (a). The equity prevails against the husband, his trustee in bank- ruptcy, his assignee for the benefit of creditors, and his assignee for valua])le consideration (h), except in respect of an equitable life interest of hers when she is living with and is maintained by her husband, including an equitable life interest where she is deserted by her husband, or where she is not being maintained l)y her husband as againsii a particular assignee of her husband for value taking previously to his insolvency or desertion of her(r). The wife is entitled to her equity to a settlement in respect of a legacy in priority to the rights of executors to retain it for a debt due from her husband to the testator (. 279; Ro Todd (1854), 19 Beav. 582. (1851). 3 Mac. & G. 599. husband's power over wife's chattels real. 075 requiring the consent of the \vife(/), and the husband, if by such law the wife's personal estate vests absolutely in him, can have real property in England settled in trust for sale conveyed to him- self (/i). But if the wife be a ward of chancery the Court is bound to take care that proper provision is made for her before parting with the fund (/) belonging to her, though if the wife be an alien and were domiciled here the fact of money being paid to her account in an action to which she is not a party will not make the Court treat her as a ward of Court {m). The equity to a settlement is of no practical importance in England since the Married Women's Property Act, 1883. Husband by Settlement on Wife will acquire all her Choses in Action. — Although marriage is not an absolute gift to the husband of his wife's clioscs in action, but the law gives him the power of making them his own, either by receipt or by assignment of them for value, or by a release of them, yet, by making a valid settlement on her, he may acquire the sole and absolute interest in them. But to entitle him to the whole of her fortune there must be an agree- ment for that purpose either expressed or implied. The wife's cliuses in action which the husband does not purchase by settlement will be subject to her rights of survivorship, and of provision by settlement, which have been before considered. Husband's Power over Wife's Chattels Real. — The common law confers on the husband oul}^ a qualified title to the chattels real, of which the wife at the time of, or during the marriage, may be possessed. He has, in right of his wife, an interest in them, with a power of alienation during the coverture. They were liable for his debts, and would vest in his trustee or assignee in bankruptcy (/?). He may defeat her right of survivorship by disposing of her terms for years by a complete act in his lifetime, but if he has not made any disposition of them, and survive her, (t) Sawyer i: Shute (1792), 1 Anst. L. C. Eq. 647, 6JL 65, Prussian law ; Campbell r. French {k) Hitchcock t'. Clendinen (1850), (1797), 3 Ves. 321, American law; 12 Beav. 534. McConnick v. Garnett (1854), 5 De G. (/) Tweedale's Settlement (18c9), M. & G. 278, Scotch ; Anstruther u. Johns. 109. Adair (1834), 2 My. & K. 513, Scotch ; (/n) Brown v. Collins (1883). 25 Ee Letts (1881), 7 L. E. Ir. 132, Ch. D. 56; 1 Wh. & Tud. 647 n. New York ; Ee Molyneux (1856), 5 Ir. (u) Lush, 66. Ch. Eep. 346, Scotch ; 1 Wh, & Tud. 43—2 G76 EFFECT OF MARRIAGE OX PROPERTY — ENGLISH LAW. the law confers them on him, not as representing his wife, but jure mariti, and it is not necessary for him to take out administration to her (o). If, however, the wife survive him, and the terms remain in statu quo, she, and not her husband's representatives, will be entitled to them. He cannot, therefore, dispose of them by his will against her surviving him because as his will does not take effect until after his death, the law takes precedence, and vests the terms in the wife inmiediately upon his decease ; but if he be the survivor, then his testamentar}' disposition of them will be good {p). When the husband, by surviving his wife, becomes entitled to her terms for years, he succeeds to them, subject to all the charges and equities with which they were affected in her possession. If, before marriage, she had subjected them to any incumbrance, and her husband, either after her marriage, or after her death, renewed the leases, or surrendered the old and took new leases, the incum- brances in equity will attach upon such new leases, and the creditors will not be bound to contribute towards fines and expenses incurred in consequence of these transactions (q). Husband's Power over Wife's Equitable Chattels Real. — It seems that the husband's assignment of the wife's equitable chattels real defeats her right by survivorship, although made without consideration (?•)• As an agreement to do an act is considered in equity the same as if the act were done, if the husband agree or covenant to dis- pose of his wife's term for years, or any part of it, such agreement or covenant will, it seems, be enforced against her surviving him (s). An alienation by the husband of a part of his wife's interest is valid. If she had a lease for forty j'ears, a sub-demise by him for twenty years will be good against her, although she survive him, and the residue of the term will belong to her, as undisposed of by the husband. If he alienate the whole of the term possessed by (o) In re IJellamj', Elder v. Pearson 174. (1883), 25 Ch. D. 620; Encyclo. Eng. (?•) Mitford v. Mitford (1803), 9 Law, tit. Ilusljand and Wife, vi., 648. Yes. 87, 99, qiuei-e if consideration is (p) Co. Litt. 351; Lush, 56. The not necessary. See Macanlayr. Phillips chattels real of a wife married before (1798), 4 Ves. 15, 19 ; Franco v. Franco 1883 are not merged by the husband (1799), 4 Ves. 515, 528. purchasing the reversion: Hiu-ley v. (s) Bates v. Dandy (1741), 2 Atk. HuHey, [1!)(»S] 1 Tr. 393 ; [1910] 1 Ir. 207 ; Steed v. Cragh (9 Geo. I.), 9 Mod. 86. 43; I)ruco v. Denieon (1841), 6 Yes. (f/) Moody '■. Mathews (1802), 7 Yes. 385 ; Lush, 5(!. husband's power over wife's freeholds. 677 him in right of his wife, upon condition that the grantee pay a sum of money to his executors, and he then dies, and the condition is broken, upon which his executors enter on the lands, the ahenation by the husband will be a sufficient disposition to bar the wife of her interest in the term, it having been wholly disposed of by him during his life, and vested in the grantee (0- If the husband pledge a term of years of his wife for a debt, and he either assigns, or agrees to assign, all or part of such term to the creditor, it has been seen that the transaction will bind the wife (»)• The power of the husband over his wife's term for years may be taken advantage of by his creditors, during the marriage. If then he be possessed of such a term in right of his wife, it may be sold under a, fieri facias (r). But although it may be extended or sold, for the satisfaction of his debts, yet if that be not done during his life, and his wife survive him, the term in her possession will be discharged from the demands, because she claims it paramount to her husband, and, therefore, exempted from the claims of all persons deriving title under him. Husband's Power over Wife's Freeholds. — The husband, by the intermarriage, acquires a freehold interest, during the joint lives of himself and wife, in all freehold property of inheritance of which she was at that time seised, or of which she might become seised during the coverture, and he becomes entitled to receive, for his own use, the rents and profits of such property (.r). As a necessary incident to this seisin of the husband, the common law conferred on him a power by alienation of converting her interest into a mere right. His right of possession enabled him by his alienation of it without her joining or consent to prejudice her right of property defeasible by action only. Such an alienation is termed a discontinuance (?/). To demise her lands (except under a power) the concurrence of her husband was necessary and the deed must be acknowledged by {t) Synrs Case (158-1), Cro. Eliz. 33; (x) Eobertson v. Noms (1848), 11 1 Eoll. Ab. 344, p. 10; 1 Eoper, ibid. Q. B. 916; Lush, 43; Ex parte Eogers 181. (1884), 26 Cli. D. 31, husband entitled ((/) Bates V. Dandy (1741), 2 Atk. to possession of title-deeds duxing 207. marriage. (r) Co. Litt. 351 ; Miles r. Williams (i/) Tennent v. Welch (1888), 37 Ch. (1714), 1 P. Wms. 258. D. 622, 633. 676 EFFECT OF MARPJAGE ON PROPERTY — -ENGLISH LAW. the wife (z). But at her death he ceased to have any power over them, and if he continued to hold them he was hal)le as a trespasser (a). This and the jjreceding provisions of the common law and statutes prior to 1883, as already mentioned, are only applicable to marriages contracted before that date and to j)roperty which accrued before that date. The estate by curtesy (which existed previously to 1883 in respect of all lands of the wife, whether separate property or not, subject in the latter case to her not having devised them by will) is an exception, and continues under the modern law, though it can be defeated at the pleasure of the wife. (b) Rights of Husband in "Wife's Property after her Death. — Estate by Curtesy. — It has been seen that at common law the husband on his marriage acquires an estate in his wife's real jDroperty, during the joint lives of himself and his wife. He will, however, if he have issue by her, also acquire an estate for his own life. The latter estate which he thus acquires is called an estate by the curtesy of England {b). This title of the husband is an estate for life in such lands and tenements of his wife, as she was solely seised of in fee simple or fee tail, upon having issue by her born alive, that may by possibility inherit the estate by descent from her (/;). All such persons may be tenants by the curtesy who are legally married, and are permitted by the laws to hold and enjoy real estate. The species of property subject to curtesy are manors, lands, and tenements, of which actual seisin maybe ol)tained by the wife ; and of various hereditaments, such as rents, tithes (c), commons, advow- sons ((/), offices of inheritance, trusts, equities of redemption, &c. (e). But there can be no curtesy of a mere right, title, condition, personal inheritance, Sec. ( /'). Nor of copyhold lands, except by special custom of the manor. Under the Copyhold Act, 1891, land enfranchised under it is not subject to any custom as to tenancy by curtesy, but is subject to the general law of freehold land, except in tlie case of persons married before cnfraiicliisenient. (z) Lush, 47. See post, p. G94. (c/) Ihid. (a) (3 Anne, c. 18, s. o; Williams, (e) Litt. s. 35; Pevk. ss. 457, 1(33; Eeal Property, 21st ed., ;}()!). Plowd. ;37'.>. (/;) Lush, 100. (/) Co. Litt. 2it ; Turk. t^s. 4.37. 4G;3. (f) Co. Litt. 29, 30. husband's estate by curtesy. 079 111 all cases where actual seisin l)y the wiie can be acquired, as of lands and tenements, it must be obtained in order to found the husband's claim to curtesy (//). As actual seisin of the inheritance by the ^Yife of her lands and tene- ments is required to entitle her husband after her death to curtesy ; that estate will notarise, unless there be an entry in her lifetime(/0. With regard to other realty seisin in law is sufficient — e.g., for an advowson. As regards lands it is not clear how far actual seisin is required to establish the estate (/). The reason given by Coke that seisin in deed is necessary in order to trace the descent from the person last seised seems no longer to apply since the provision of the Wills Act that descent is to be traced from the last purchaser (j), and perhaps in the case of lands which the wife takes as purchaser actual seisin is no longer necessary to found the estate, just as it is not necessary where actual seisin cannot be obtained (k). In equity the Court allowed the husband a similar right in his wife's equitable estate in lands held for her separate use, provided that some act corresponding to actual seisin is done (l), and if the wife has not disposed of it by deed or will he has it (m). A wife having an estate of inheritance to her separate use can exclude her husband's right by disposing of the estate {>i). If his wife be seised of a less estate than that of inheritance, his title to curtesy will not arise. When, therefore, she is onl}^ tenant for U/c, or jMui- autre vie or at trill, no curtesy attaches. The seisin of the wife must be of the entire inheritance at some period during the marriage. Her seisin, therefore, of a reversion in fee upon an estate for life, will not entitle her husband to curtesy, except that estate determine during the marriage (o). () Co. Litt., 30. (s) 1 Eoper, 13. ('/) 2 Eoll. Abr. 90, pi. .J(); 1 lloper, (<) 1 Roper, 21. Ilnsbaiul find Wife, 13. {«) EiicjtIo. ]*]n>i'. Law, tit. Curtes}', (/•) Jiitt. H. 35; 1 Roper, Ilusbaud iv. 2G9. and Wile, 13. ISSUE MUST BE BORN DURING MARRIA(iE. 681 the meantime, and the estate of tenant by the curtesy ought not to take away the immediate descent, and in pleading it is necessary for him to allege that he had issue during the marriage, which in this case he cannot do {!>). It has been observed, however, that if such a question arose at this day, a different decision would probably be given ; a child in ventre sa mere being now considered in esse, not only for its own benefit, but for other purposes (e), and as they are held to be included under the description of children born to the husband, it might, jDerhaps, be alleged in pleading, that he liad issue horn during the marriafie (d). One of the difficulties, however, stated by Lord Coke (if it can be considered substantial) still exists. The estate during the short interval after the death of the wife descends to her next heir, and is not divested ah initio by the subsequent birth of the child (e). The issue, when born alive, must be inheritable to the estate from the mother, either immediately or by possibilit}'. If land be given to a woman and the heirs inale of her body, and she have issue only a daugliter, and die, or if the limitation be to her and the heirs female of her body, and she have issue only a son, in neither of these cases can the husband claim curtesy, because in neither of them was there issue born who could by possibility inherit the estates (/). By the custom of gavelkind a husband may be tenant by the curtesy without having issue by the wife (g) ; but his estate only extends to a moiety of the lands and ceases on his remarriage (h). To entitle the husband to curtesy, it is sufficient if the issue be born at any period during the marriage, and ior this purpose it is immaterial whether the issue come into existence before the seisin of the wife or afterwards (i). He is, as other tenants for life are, entitled to emblements, and may dispose of them by his will, or if he make no such disposition, they will belong to his executor or administrator {k). {b) Paine's Case (1587), 8 Co. 3i a; (/) Co. Litt. 29 b ; Williams, Real Co. Litt. 29 b. Property, 308. (c) Thellussou r. Woodford (1799), (y) Lush, 103; 1 Eoi^er, 33. 4 Yes. 227, 323, 324. (A) Encyclo. Eng. Law, iv. 268. ((/) 1 Eoper, Husband aud Wife, 31, (i) Co. Litt. 29 b. n. («). (A) 1 Roper, 35. (e) Ibid. 682 EFFECT OF MARRIAGE ON PROPERTY ENGLISH LAW. The estate by curtesy is considered in many respects as a con- tinuation of the estate of the wife, and consequently the husband takes it after her death with all the incumbrances which would afi'ect it in her possession, if she were alive, and is entitled to all the rights and privileges which she might have exercised, and which were annexed to the estate. The husband's title as tenant by the curtesy will be defeated by the recovery of the estate by a stranger under a good prior title (/). If the possession by the wife be defeated by the birth and entry of her brother, a postJtuDioiis son, the title of the husband to curtesy must fail. Yet, if the brother die without issue Ijefore the wife^ and the husband re-enter during the marriage, this will revive his right to curtesy {m). The husband's title to curtesy will be extinguished by his own conveyance during the marriage, as well as by that in which he and his wife join (»). The husband will not by adultery forfeit his curtesy ; although adultery will be a forfeiture of the wife's dower (o). Curtesy under Present Law. — Under the present law, although the real property of a woman married before 1883, and real property acquired after it b}^ a woman married before it is held by her as a feme sole, the estate of the husband in it by curtesy still exists, and arises in case of the intestacy of the wife (_/>), as it did formerly, whether the property was separate or not, unless the wife had devised it if separate by her will (q). Under the Settled Land Act, 1882, and Settled Estates Act, 1877 (r), a tenant by the curtesy has the powers of a tenant for life (s), and the Settled Land Act of 1884 declares that for the purposes of the former Act the estate of a tenant l)y the curtesy is an estate arising under a settlement made by the wife (t). Now the wife can dispose of any separate estate ])y will or deed unless restrained from anticipation, and defeat the (/) 1 lioper, Tfuh-ljaiid and Wife, Cliallis and Wolsteiiliohne ; la ro p. 37. iJeiLyshire (1905), 75 L. J. Ch. 95. {in) 2 Bro. Curtesy, fo. 'J49 b, pL 13; (7) Cooper v. Macdonald (1877). 7 1 Eoper, Husband and Wife, 37, 38. Ch. 1>. 288 ; Lush, 104 ; AViliiams, 316. (h) 1 Roper, 44. (;•) Ss. 46, 47. {<>) Lush, 105 ; 1 Roper, 45. (5) S. 58 (1) (viii.). {]>) Ilojie V. Hope, [1892] 2 Ch. 336 ; {t) 47 & 48 A'ict. c. IS, s. 8 ; Williams, Eneydo. Kng. J^aw, iv. 268, citing Real I'n pcn'ty, 309. RIGHTS OF WIFE IN HUSBAND's PROPERTY. 683 estate by curtesy {ii). The husband can contract to forego it by clause in the marriage settlement (r). Attainder of the husband before 1870 deprived him of the right of curtesy, and the wife's attainder might or might not, according as issue was born before or after the attainder. Attaiudei' was abolished in 1870 ; but persons convicted of treason or felony are disabled from suing for property or from alienating or charging any property or making any contract, and their property vests in administrators appointed by the Crown, who preserve it for them and their representatives (/r). The right is also lost by divorce, judicial separation, and a protection order being obtained (x). Husband's Right to Wife's Personalty on her Death. — The Statute of Frauds provided that with regard to the estates of married women dying intestate, their husbands might demand and administer their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the Statute of Distril)utions, which should not extend to them. This right of the husband still continues unaffected by the Married Women's Property Acts, and applies to the separate estate of a wife, dying intestate, acquired before 1883, which he will take jure mariti without administration {y). But as regards property of the wife acquired since 1882, the husband must take out administration in order to make it vest in him. If the spouses are judicially separated and the wife has obtained a protection order for desertion, property acquired by the wife during such time devolves on her death, as if the husband were dead {z). If the parties have been divorced, this and all other rights of the husband as to the wife's property, acquired before or after the decree nisi, cease (a). II. Rights of "Wife in Husband's Property. — The wife had no rights in the propertj^ of her husband during his life apart from the («) Cooper r. Macdonald, ante; r. Wharton, [1891] 1 Q. B. 491 ; Hope Shurmur r. Sedgwick (1883), 24 Ch. D. v. Hope, [1892] 2 Ch. 336. 597. (z) Matrimonial Causes Act, 1857 (r) Lush, 105. (20 & 21 Vict. c. 85), ss. 21, 25, 26. {w) 1870, 33 & 34 Yict. c. 23, ss. 1, («) Wilkinson v. Gibson (1867), 9, 10. L. R. 4 Eq. 162 ; Prole v. Soady (1868), (.r) Lush, 106. L. R. 3 Ch. 220; Encyclo. Eug. Law, \ij) Lush, 99, 168, 169; Lambert's vi. 651. Estate (1S88), 39 Ch. D. 626; Surmau 684 EFFECT OF MARRIAGE OX PROPERTY — ENGLISH LAW. provisions of a marriage settlement; and till 1881 neither could convey or assign property to the other (b). By the intermarriage the wife becomes entitled to an estate for life, upon surviving her husband, in a third part of all such estates of inheritance of which he was solely seised (c) at any time during the coverture, and to which any issue she had might by possibility have been heir. It is termed her dower (d). This right attached to the lands paramount to any alienation by the husband and to his debts, even Crown debts (e). (a) Dower. — Common Law. — If the wife was an alien, she was excluded from dower, except she was Queen-consort. But if the alien were naturalised by an Act of Parliament, she became entitled to dower out of all the lands whereof her husband was seised during the coverture ; if she was created a denizen her title to dower was restricted to lands whereof her husband was seised at the time she was created a denizen (/). She can now claim dower on real property in England and Ireland, except where the right accrues under a disposition made before 1870, or by devolution of law on the death of a person dying before 1870 (g). The widow must be of the age of nine years at her husband's death. The reason assigned is quia junior non potest dotem promereri, neqne riruDi siistinere{h). She will not be excluded from dower, however far advanced in years she may be at the time of her marriage, because the law cannot fix upon the precise period when she is no longer capable of having issue {It). Dower may be claimed out of all corporeal hereditaments, and out of all incorporeal hereditaments that savour of the realty — i.e., which issue out of corporeal ones— or wdiich concern, or are annexed to, or may be exercised within the same, as rents, estovers, common ajDpendant, or in gross (i), except it be a common suns nombre without stint, advowsons, fairs, bailiwicks, profits of a [h) Conveyancing Act, 1881, s. 50 (e) "Williams, 323. (1); Lush, 38, 207; see post. Gifts (/) Co. Litt. 31 b. (n. 9), 33; 2 inter vivos. Bl. Com. 131 ; 13 Hop. 23 ; 1 Eopor, (c) Not tho Imsljaiiir.s 0([uit;iblo 340. estates, including eciiiity of redemption, (r/) Naturalization Act, 1870 (33 Dawson v. Bank of Whitehaven (1877), A'ict. c. 14), s. 2. 6 Ch. D. 218. (//) Litt. 36 b, o3 ; Co. Litt. 33, 40. ((/) Oilb. " Dower," 3G3 ; Litt. s. 3(5 ; (/) Co. Litt. 32 a ; //;/(/., 32 b, n. 2 ; 2 Bl. Com. 130. 1 Eopcr, 341. DOWER — husband's SEISIN IN LAW REQUIRED. 685 park-keeper, profits of courts, tithes, woods, mills, piscaries, tolls arising from public navigable rivers (./), and the like (h), and money representing realty subject to dower (/). She is dowable of mines and minerals, which were worked in the husband's lifetime, but not of mines, &c. unopened (A), though she can prevent a remainderman from opening them(/»). The common law gives to the widow the proportion of one-third part of the lands in her dower ; but particular customs furnish exceptions (n). Gavelkind.— By the particular custom which established the tenure of Gavelkind, the widow is entitled to a moiety of the estate so long as she continues chaste and unmarried. This custom she cannot waive, and resort to her third part at common law, it being a maxim that consuetado tollit communem legem (o). Borough-English. — Another exception to the common law rule occurs in the instance of the custom of Borough-English, according to which, the widow is entitled to take the wlude of her husband's lands holden by that tenure for her dower {p). Copyholds — In copyhold lands, by custom of the manor, a widow has a similar right known as Freebench in copyhold estates of her husband, generally a life interest in one undivided third part, some- times a life interest in the whole, and it is paramount to the husband's debts {q). Seisin in Law required. — To entitle the wife to dower, the husband must have been seised in law — that is, have had the legal property by descent, although he may not have taken actual possession before his death — or he must have been seised in fact. If he had only a right of entry, which he had not exercised during the marriage, so as to obtain seisin of the inheritance, she had no title to dower (?•). (./) Buckeridge '•. Ingram (1795), For further details as to property 2 Ves. 652, 663 ; Drybutter t-. Bar- liable, see Burge (1st ed.), pp. 495— tholomew (1723), 2 P. Wins. 127 499; Lusb, 114 et seq.; 1 Eoper, 342 (shares in New Eiver Co. declared to et sec^. be real estate) : 1 Eoper, 342. (») 2 Bl. Com., p. 84; Eoper, i., (it) 2 Bl. Com. 131 ; Co. Litt. 32 ; 351. Lush, 114 ; 1 Eoper, 342. (o) I hid. ; Williams, 324 ; Lush, 112. (/) Gleeson v. Byrne (1890), 25 L. E. [p) 2 Bl. Com. 82 ; 1 Eoper, 351. Ir. 361. [q) Williams, 495. (m) Dicken v. Hamer (1860), 29 (r) 1 Eoper, 384. L. J. Ch. 778 (no dower of royalties). G86 EFFECT OF MARRIAGE OX PROPERTY ENGLISH LAW. Dower Act, 1834, Changes. — Important alterations in the law of dower were made by the statute 3 & 4 Will. IV., c. 105, which extends to all widows who were married after the January 1st, 1834, and applies to freehold and gavelkind lands and probably also lands held in borough-English, but not to copyholds (.s). The first of these is, that which gives dower to the widow, not- withstanding the husband had not made an entry, or recovered possession (t). Secondly, before the j)assing of that statute, the seisin of the husband must have been a legal seisin ; and, therefore, the widow was not dowable out of a trust estate. Upon this principle she was not entitled to dower out of tbe husband's equity of redemption in a mortgage in fee (a). But the statute extended it to the equitable interests of the husband (/>). The seisin must be of an estate of inheritance (c). It must ])e of the entire inheritance, at some time during the marriage, and not expectant upon the determination of a freehold interest carved out of it. If, therefore, the husband be merely seised of a reversion or remainder in fee upon an estate for life during the coverture, his wife will not be entitled to dower (^0- But if the intermediate estate, instead of being for life, had been for a term of year ii, the wife would have been dowable, because this chattel interest does not exclude the present seisin of the husband of the entire freehold and inheritance in the estate, the possession of the grantee of the term being considered the possession of the owner of the freehold {e). If an estate be limited to such uses as the husband shall appoint, and, in default of appointment, to him in fee, it is settled, that he is seised of the inheritance until he exercise the power ( /"). His widow, therefore, will be entitled to dower, if the power remain un- executed ; luit if he exercise the power of appointment, the inheritance will vest in the appointee, discharged from her right of dower (//). (s) Farley v. Bonham (1861), 30 re Michell, [1892] 2 Ch. NT. L. J. Ch. 239 ; Smith v. Adams (1854), (c) 1 Roper, 359. 5 Do G. M. & G. 712; Lush, 112. (d) Ibid See Anderson v. Pignot (0 3 & 4 Will. IV. c. 105, s. 3. (1872), L. E. 8 Ch. 180. (a) Dixon r. Saville (1783), 1 Bro. (c) 1 Eojier, 3(50, 3G1. C. C. 32(5; Dawson v. Bank of White- (/) 1 lloper, 3GG. haven (1S77), f'h. D. 218. {,j) Ibid. [h) :>, .^ 1 Will. IV. c. 105, s. 2 ; In HUSBANDS SEISIN MUST CONTINUE TILL DEATH. 687 The widow is not entitled to dower out of an estate lield by her husband in joint-tenancy, if he die before the other joint-tenant ; because the surviving joint-tenant claims paramount to the widow's title — viz., by survivorship under the original conveyance {h). If severed, the widow has dower out of his undivided moiety (i). A severance by the husband of the joint-tenancy, will not entitle the wife to her dower, if the act l)y which it is effected at the same time passes the fee of his moiety (k). But dower attaches to a tenancy in common, and to lands held in coparcenary (/). The law requires a seisin in the husband of the freehold and the nheritance, stnjicl et siinul, and it has been seen, that, if the freehold and the inheritance in the husband be separated by an interposed estate for life, which continues during the marriage, and is not waivable by the tenant for life, such a separation will prevent a title to dower arising for the widow. If, however, the interposed estate be merely a chattel interest, as such an interest will not prevent the union of the freehold and the inheritance in the husband, his widow will be entitled to dower. Thus, if the husband be seised for life, remainder to A. for a term of years, remainder to himself in fee, or in tail, or if, at the time of the marriage, the estate be subject to any other chattel-interest, his widow will be entitled to dower, subject to that interest. The widow is entitled to a third of the reserved rent (m). If the terms outstanding be satisfied, the widow is entitled to dower immediately in equity against an heir or devisee. But if they be unsatisfied mortgage terms, she must keep down one-third of the interest (»). Thirdly, before the passing of the statute (o), it was not necessary to the wife's perfect title to dower that the husband's seisin should continue until his death, although there are some copyholds where the custom of the manor gave free bench to the widows of such copyholders only as died seised (j>). It Avas sufficient if he were {h) Co. Litt. 30; Litt., ss. 35, 45; (/) Litt., s. 45 ; 1 Eoper, 367. 1 Eoper, 366. {m) 1 Eoper, 37L {i) Eeynard v. Spence (1841), 4 {v) Ibid. Beav. 103 ; Lush, 113. (o) 3 & 4 Will. IV. c. 105, s. 4. (A-) Co. Litt, 31 b : 1 Eoper, (iO 1 i^oper, 374 ; Large, 1st ed., i., 367. 505. 688 EFFECT OF MARRIAGE OX PROPERTY ENGLISH LAW. heneficialhj seised of a lawful estate of freehold inheritance, at any period during the marriage, and if for an instant only (r/). But if the instantaneous seisin were merely transitory — i.e. when the very same act by which the husband acquires the fee takes it out of him, so that he is merely the conduit for passing it, and takes no interest — such a momentary seisin would not entitle his widow to dower. Thus, if lands were granted to the husband and his heirs by fine, who immediately, by the same fine, renders them back to the conusor, the husband's widow would not be entitled to dower of such an instantaneous seisin (;•). From the favour shown by the law to the title of dower, the dowable estate, although it has naturally determined, will be con- sidered still to subsist, in order that the widow may hold her dower of it during her life (s) — e. g., in the case of the husband being tenant in tail. If the husband be seised in fee, and die w^ithout heirs, the wife will be entitled to dower as against the lord by escheat (t). No dos de dote. — If there be two widows dowable, and lands be assigned to the first widow as her dower, the second widow's right to dower out of the lands so assigned is defeated (u). But she will be entitled to dower out of the remaining two-thirds. It is a maxim of the law of England that dos de dote -peti non debet. This maxim only applies when dower has been actually assigned. The second widow surviving the first, will not be excluded from dower of the third part of the estate assigned to the first widow, unless the husband of the first died seised of the inheritance. It might happen that the husband becomes seised of the same estate at two or more distinct periods during the marriage. In these instances the widow is at liberty to elect of which seisin she will be endowed. Thus, if he were seised in fee, and conveyed away the estate, and then took it back again in fee, or in tail, his widow might elect whether she would be endowed upon the first or second seisin {x). If the widow precluded herself of this right of election by joining witli her husband in the alienation of the estate, and he take back [q) 1 Ropor, 373. («) Co. Litt. 31 ; Bustard's Case (r) 1 Roper, 374. (1603), 4 Eep. 121 a. («) 1 Roper, 376. (.t) Co. Litt. 33. (<) 1 Roper, 377. NO BIRTH OF ISSUE NECESSARY. 689 the same estate in fee or in tail, she will he entitled to dower of this second seisin (i/). Fourthl}^ hy the common law the wife's right commenced with the marriage, or the subsequent acquisition of property by the husband, and it was not defeated by his alienation ; for she might compel the purchaser after her husband's death to assign her dower (z) . The widow also, at common law, held her dower discharged from all incumbrances created by her husband after the marriage, because upon the husband's death, the title of the wife being consummate, had relation back to the time of the marriage, and to the seisin which the husband then had, both of which precede such incum- brances. And dower was even protected from distress. for a debt contracted l)y the husband to the Crown during the marriage (a). The statute above mentioned altered the common law in both these last respects. It enabled the husband to defeat by deed or will the wife's right to dower, by enacting that no widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will, and this extends to freebench in copyholds (b). And it further enacted that all partial estates and interests, and all charges created by any disposi- tion or will of a husband, and all debts, incumbrances, contracts, and engagements, to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower (c). This is the most important alteration made by the statute, for the result of it is to confine the operation of dower to lands belonging to an intestate at the time of his death. It is questionable whether there are any women still alive who w^ere married before 1834, to whom the old law of dower still applies. No Birth of Issue Necessary. — It is not essential to the widow's title to dower, as it is to the husband's right to curtesy, that there should be any issue born. But the issue which might have been born must be such as by possibility might have inherited the estate (d). {l/) Ibid., 11. 5. IV. c. 105), s. 4 ; Lacey v. Hill (1875), (z) Co. Litt. 31 a, 32 a; Doe d. L. E. 19 Eq. 346. Riddell v. Gwiniiell (1841), 1 Q. B. (c) Dower Act, 1833 (3 &4 Will.IV. 682; Lush, 109, 110. c. 105), s. 5. (a) Co. Litt. 31 a, 46 a; 1 Eoper, (d) 2 Bl. Com. 131; Litt., s. 53; 411. Burge, 1st ed., 505. Amcotts v. Cathericli (1622), Cro. Jac. {!)) Dower Act, 1833 (3 & 4 Will. 615 ; Lush, 109 ; Eoper, 342. It has M.L. 44 690 EFFECT OF MARRIAGE ON PROPERTY — ENGLISH LAW. Attainder. — The wife's title to dower might have beeu barred by her attainder for treason or felony ; but if pardoned, she might then demand it, though her husband should have alienated his lands in the mean time, for when this impediment was once removed, her capacity to be endowed was restored (e). Now attainder is abolished if). Adultery. — If a wife willingly leave her husband, and continues with an adulterer, she is barred of her action to demand dower, if she be convicted thereupon, except her husband willingly, and without coercion of the Church, be reconciled to her, and suffer her to dwell with him, in which case she shall be restored to her action ((/). This is so whether it is with his consent or because of his cruelty that she is living apart from him. Her right ceases after a decree of divorce, but not after one of separation (h). There is a curious case in the Rolls of the English Parliament, where a man by deed granted his wife to another with whom she eloped, and lived in adultery. It was determined : (1) that it was a void grant ; (2) that it did not amount to a licence — or, at least, it was a void licence ; (3) that after elopement there should not be any o^vev- ment, quod nonfuil ad ulterium, though she married the adulterer, after her first husband's death, therefore that she w^as barred of dower (i). She forfeits her dower if she detains from the heir the charters which belong to the estate out of which she claims dower. A wife may also deprive herself of the right to claim dower by her joining with her husband in the alienation of the estate (A;), by agreement in the marriage settlement (l), by contract with her husband during marriage (in), or she may waive her right to it after the husband's death (»)• been held (but Lush doubts, 116) 6 Bing. loo; Woodward v. Dowse that the widow's right to dower (1861), 10 C. B. N. S. 722 ; Erampton or freebench precedes simple contract v. Stephens (1882), 21 Ch. D. 164; debts of the deceased, the dowable Lush, 121. l)ortion not being "lands subject to (t) 30 Edw. I. ; Coot c. Berty(169S), dower": Spyer v. Hyatt (1855), 20 12 Mod. Rep. 232 ; 1 Roper, 560. Beav. 621 ; Northern Banking Co. v. {k) Williams, 323. McMackin, [1909] 1 Ir. R. 374. (/) Lush, 119; Gurly v. Gurly (e) 1 Roper, Husband and Wife, 559. (1842), 8 CI. & F. 743. (/) See p. 683, ante. (m) Ibid. (fi) 7iiV/., 13 Edw. I. (Westminster 2), («) [bid. See Meek c. Chamberlain c. 34. (1881), 8Q. B. D. 31. (/() Hetherington v. Graham (1829), DOWER EXCLUDED BY DECLARATION. 691 Fifthly, dower may since the statute be excluded by declaration. By another provision of the statute above mentioned, she is not entitled to dower out of any land of her husband, when in the deed by which such land was conveyed to him, or by any deed executed by him, it is declared that his widow shall not be entitled to dower out of such land (o). Neither is she entitled to dower out of any land of which her husband dies w^holly or partially intestate, when by his will, duly executed for the devise of freehold estates, he declares his intention that she shall not be entitled to dower out of such land, or out of any of his lands (j;). The right of a widow to dower is, by this statute, made subject to any conditions, restrictions, or directions, which are declared by the will of her husband, duly executed (q). If the husband devises land or any interest or estate therein out of which his widow would have been dowable to or for her benefit, she is not dowable out of any of his land unless a contrary intention appears in his will — e.g., a devise to trustees in trust to sell and pay an annuity out of the proceeds (r). No gift or bequest out of personal estate or out of land not subject to dower will defeat the widow's right to dower unless a contrary intention is expressed in the will (s). An agree- ment by the husband not to bar his wife's right to dower will be enforced by the Court {t). The former rule that if a legacy were given in satisfaction of dower it took priority over simple legacies is, perhaps, continued by the statute, but applies only where the widow would have been entitled to dowser if she had not accepted the legacy in satisfaction (»). The effect of jointures and settlements in barring dower, and of provisions in wills in satisfaction of it, and the alteration made in these respects by this statute, will be referred to in a subsequent part of this chapter (v). The widow is not entitled to take possession of any land for her dower, but the assignment is to be made by the heir ; and if he neglect it or do it unfairly, she can compel a just assignment by (o) 3 & 4 Will. IV. c. 105, s. 6. (s) 3 & 4 Will. IV. c. 105, s. 10. (lO ^^i^f; s. T. {t) Ibid., s. 11 ; Lush, 117, US. {q) Ibid.,s. 8. (w) Ibid., s. 1'2 ; In re Greenwood, (r) Ibid., s. 9; Lacey v. ffill(1875), [1892] 2 Ch. 295. L. E. 19 Eq. 346 ; In re Thomas (1886), («) See pp. 723, 724, 2^ost. 34 Ch. D. 166. 44—2 692 EFFECT OF MARRIAGE ON PROPERTY ENGLISH LAW. legal process, and generally recover compensation. The wife's remedy to enforce dower is now by ordinary action begun by writ endorsed with notice that the claim is for dower, in place of the old writ of dower given by 20 Hen. III. c. 1 (iv). The action must be brought within twelve years (formerly twenty years) from the time that the right of action accrued (.r), and only six years arrears can be recovered (?/), Widow's Quarantine. — She is entitled to be endowed immediately after her husband's death, and her dower ought to be assigned to her within forty days after the happening of that event ; in the mean time she is entitled at the common law, confirmed by Mar/tia Charta{z), to remain in her husband's capital messuage, or other dwelling-house, of which she is dowable, for the space of forty days, and to be supported de bonis viri. This title of residence is called the widow's quarantine. But if she marry during these days, or depart from her husband's house (to which she will not be permitted to return for the remainder of the time), her right to quarantine determines {a). The assignment of dower required by the common law is of one- third part of the lands or tenements of which the widow was dowable,. and to be set out by metes and bounds, where it is practicable, to be held by her for life. Hence it apjDoars that the endowment must be parcel of the lands and tenements themselves (/>). Position of Tenant in Dower. — The interest of tenant in dower is an estate for life. Like other tenants for life, she is answerable for waste committed by herself, or by a stranger, whilst she con- tinues tenant in dower (c). She is entitled to emblements, since by the Statute of Merton ((/) a tenant in dower is empowered to dispose of the corn growing {w) Com. Law i'roc. Act. 1S60 388 ; Lush, 122. (2:5 & 24 Vict. c. 126), 8. 26; Judicature (/>) 1 Eoper, Husband and Wife, Acts, E. S. C, Ords. 1, 2, Appendix 392 et seq. A., Part iii., s. 4. (c) Co. Litt. 53, 54 ; 1 Eoper, 416 ; (x) Eeal Property Ijiinitation Act, Lush, 122. She can exercise powers 1874 (37 & 38 Yict. c. 57), s. 6 ; and see of leasing (twenty-one years, England ; Williams v. Thomas, [1909] 1 Ch. 713 ; thirty-five years, Ireland) of tenant for I^ii«b, l-'l- life under Settled Estates Act, 1877, (.»/) Real J'roperty Tvimitation Act, ss. 45, 46; Williams, 329; Encyclo. 1833 (3 & 4 Will. IV. c. 27), s. 41 . Eng. Law, vi. 645. (z) Chap. 7. {d) 20 Hen. III. c. 2 ; 1 Roper, (a) Co. Litt. 32 b, 34 b ; Eoper, Husband and Wife, 426. POSITION OF TENANT IN DOWER. 693 upon her estate at the period of her death ; that Act having been passed to remove the doubt which previously existed upon the subject. As her interest is a continuation of her husband's seisin, she is liable, as standing in his place, to one-third of all the duties and services to which the estate was subject in his possession, and for which one-third she is answerable to the person entitled to the reversion of the property (c)- If the estate be subject to a mortgage for a term of years, granted before the husband became entitled to it, she must keej) down one-third of the interest (/'). At common law, damages for the detention of dower were recoverable only from the time she obtained judgment ; but by the Statute of Merton they are given, if the husband died seised. If, however, he did not die seised, having alienated the lands, the widow would not be entitled at law^ to mesne profits, damages, or costs, because such a case is not within the provisions of the Statutes of Merton and Gloucester, and by the common law she was only entitled to recover one-third of the lands, and of their value from the time she obtained judgment for her dower (^(/). But if the heir alien the lands after the husband's death, and the widow recover dower against the alienee, she will be entitled to vies)ie profits, and damages against him, to be computed from her husband's death (/O. When the husband dies seised, his heir succeeds to his estate by legal right, so that his entry and enjoyment of it being under a lawful title, he does no wrong in retaining possession of the whole, until he be demanded by the widow^ to assign and deliver up to her a third part of it for her dower. Previously to such demand the widow's title to damages under the Statute of Merton is defective, for it only gives them to such widows who cannot obtain their dower sine placito — i.e., without suit, after a prior demand (?). The rules of dower are now of very little practical importance. If a claim for dower should arise, which must be a very rare occurrence, it would be most convenient to meet it, if possible, by a money payment to the widow. (e) 1 Eoper, 427, 428. (/i) Jhid. If) 1 Eoper, .'171. (/) Ibid., 444. {g) 1 Eopej-, 437—440. 694 EFFECT OF MARRIAGE ON PROPERTY — ENGLISH LAW. (b) Wife's Interest in Husband's Personal Estate. — On intestac}^ of a husband his personal estate, after satisfying his funeral expenses and debts, is distributed between his Avidow and children or their representatives in the proportion of one-third and two-thirds respectively. If there are no children or representatives of them, the widow takes one-half and the next of kin the other half. If there are no next of kin, the widow takes half and the Crown half. Since 1890, on intestacy, where there is a widow and no issue, she obtains a preferential share of i;500 in addition to her share in the residue remaining after deduction of that sum (k). Neither husband nor wife are "next of kin" to each other within the Statute of Distribution (/). The wife may claim, and is in practice generally granted, administration of her husband's effects in preference to the next of kin, except for good cause to the contrary — e.g., living separate from him up to the time of his death, or having barred her right by contract, or having been divorced from him, but re-marriage is not such a cause (?«). As his administratrix she can retain a debt due to herself lent by her to him for the purposes of his business though he is insolvent (n). HI. Power of Wife over her Own Property. — The wife had no power to dispose of her freehold estates (being separate pro- perty) by her own deed alone or by will (o). Unless a power of appointment was reserved to her she could only dispose of her lands by a fine or recovery, or bargain and sale, and the husband had to join in the fine, and she was separately examined to see if her consent was bona fide given (jt)). Acknowledged Deeds. — Fines and recoveries were abolished in 1833, and more simple modes of assurance of lands of any tenure substituted (g-) — namely, by deed — in which the husband concurs, {k) 53 & 54 Vict. c. 29. This sum 637, and other decisions; and see of £500 is charged on the real and Testaments, post. personal estates in proportion to their («) In re Ambler, [1905] 1 Ch. 697. value. The Act does not apply to (o) 34 Hen. A^III. c. 8 ; Wills Act, cases of partial intestacy: In re Twigg's 1837 (1 Vict. c. 26); Taylor r. Meads, Estate, [1892] 1 Ch.'579. If the (1865), 34 L. J. Ch. 203; In re Bacon, estate is not more than £500 the widow [1907] 1 Ch. 475. takes the whole : Lush, 123, 124. ( ;;) Lush, 44, 45 ; Williams, 310; {I) Lush, 100, 124. see Iloper, 139, 140. {m) Lush, 125, citing Goddard v. {ost ; {k) Ibid. ANTE-NUPTIAL DEBTS AND ACTS OF WIFE. 697 made on adequate consideration (/). If the wife survive the husband, an action may he maintained against her for the recovery of her debts contracted diini sohi {»)). Modern legiskition has modified this position as follows and prospectively in the case of each statute. By the Married Women's Property Act, 1870, in respect of marriages taking place between 1870 and 1874, the effect of which was onl}^ to deprive the husband of the right to certain property of the wife accruing during the marriage (»), the wife alone was made liable to be sued for any debts contracted by her before marriage, and her separate estate alone was made liable to satisfy it : it was not necessary to join the husband as defendant : the wife did not become personally liable (o). This left the creditors of the wife without a remedy where she married without a settlement ; and an amending Act of 1874 accordingly provided that a husband and wife might be jointly sued for any debt contracted by the wife before marriage, or for any tort committed by her before marriage, or for the breach of any contract made by the wife before marriage, and that the husband should be liable in respect of such claims to the amount of the value of the personal estate in possession of the wife vesting in the husband, of the chases in action of the wife which the husband should have or could have reduced into possession, of the chattels real of the wife vesting in husband and wife, of the rents and profits of real estate of the wife which the husband had or could have received, and of the husband's estate or interest in any propert}^ real or personal transferred to him or to another person in contem- plation of marriage, or with his consent transferred to any person with a view to defeating or delaying her creditors. There are other provisions for carrying out this limitation of the husband's liability in respect of the wife's ante-nuptial debts and liabilities, and to the extent that he was so liable in resj)ect of such assets, judgment for the total amount was a joint one against him and the wife, and a separate judgment against her for the residue, and her separate estate was liable whether subject to restraint on anticipation or not. It was not necessary under this Act or the former one to (/) See Settlements, p. 723, post. further on this subject, see 2 Roper, {m) Woodman v. Chapman (1808), 75 ; Lush, 312. 1 Campb. 189, per Lord EUenborough, (?0 Lush, 129, 147—149. 0. J. ; 2 Eoper, 73; Lush, 312. For (o) Lush, 314, 31u, citing cases. 698 EFFECT OF ^MARRIAGE ON PROPERTY — ENGLISH LAW. show that the wife had separate estate at the time of judgment or of bringing the suit, and the liabiHty of the wife was a proprietary and not a personal one. This Act, however, by providing only for a joint judgment against both parties, was held not to make the liusband liable after the wife's death, although having sufficient assets as described above to meet it. The Married Women's Property Act, 1882, which governs all marriages entered into since 1882, makes a more comprehensive arrangement than its predecessors. The wife continues liable after marriage in respect of and to the extent of her separate property for all debts contracted and all contracts entered into or wrongs committed by her before her marriage, and she can be sued in respect of such liabilities, which shall be satisfied out of her separate property, and as between her and her husband, unless there is any contract to the contrary, her separate property is primarily liable. The liability of a woman married before the Act is not affected by it except as regards separate property coming to her under the Act which would not have been separate property previously to it (j?). The husband is liable for such liabilities of the wife to the extent of all property whatsoever belonging to her coming to him by or through or from the wife after deduction of any payments made by him or sums recovered under judgments against him in respect of them ; but his liability, if married before the Act, in respect of his wife's liabilities is not affected (q). The husband and wiie may be jointly sued in respect of any such liabilities contracted by the wife before marriage. If in any action against them both or the husband alone, the husband is not found liable in respect of property coming through the wife as above mentioned, he gets judgment for the costs of his defence whatever be the issue of the suit; while if he is found liable wholly or partly for the debt or damages recovered, the amount of his liability is secured by a joint judgment against him personally and the wife in respect of her separate estate, and as to the residue against his wife as regards her separate property only (?•). Although the liabilities of the wife under the Act include liabilities by reason of any breach of trust or dcrasiavit committed by her being a trustee or executrix or ( ;») Married Women's Property (y) /hi'i.,s. 14. Act, 18S2 (45 & 4<; Vict. c. Id), {r) 1 hi,!., e. \6. 8. 13. ANTE-NUPTIAL DEBTS AND ACTS OF WIFE. 699 administratrix either before or after marriage, the husband is expressly exempted from HabiUty therefor unless he has acted or intermeddled in the trust or administration {s). This alters the former law by which the luisband was always liable, even after coverture, for any breaches of trust or (Jcra!>to!it- App. Caa. 123. (c) Co.I>itt. 187 a; Doe tf. Freestone {>■) Lush, 152, citing cases. V. Parrott (1794), 5 Term Rep. 652, per (/) In re March (1883), 24 Oh.D. 222; Lord Kenyon ; Lush, 152 ; Ward v. and on appeal (1884), 27 Ch. I). 166 ; Ward (18S0), 14 ("h. D. 506; In re In re Jupp (1883), 39 Ch. D. 148 ; In re Bryan (1880). ilml., 516, wlioro it was Dixon (1889), 42 Ch. D. 306; Lush, hold that a wifo ct,\M nut claim an l.'),'}. wife's separate estate. 701 the case of personal chattels ; nor does divorce determine a joint tenancy though the wife continues to have it to her separate use(//). V. Wife's Separate Estate. — Except in some few cases of necessity, which have heen hefore adverted to, the common law did not permit the wife to take or enjoy real or personal estate, separate from and independent of her husband. Her incapacity in this respect has been greatly relaxed in modern times. The interposition of trustees seems, at the first, to have been deemed essentially necessary, in order to protect the wife's separate interest (//) ; and, regularly, when property is intended to be given or settled upon a married woman for her separate use, it ought to be vested in trustees for her ; but it has been established that if land or personalty be devised, or settled to, or upon, or transferred to a married woman, for her separate use, although it be not vested in trustees, still in equity the intention will be effectuated, and the wife's interests protected by converting her husband (who acquired the property ,/ure viariti) into a trustee for her (i). In the cases referred to the property was given by strangers to the wife's separate use ; but the principle equally applies, and even more strongly, when the estate is given to the husband for her separate use ( ;'). In these instances he will be a trustee for his wife of such property, and the wife's equity to it will be enforced against assignees in bankruptcy, and under the Insolvent Debtors Acts, and against trustees under conveyances from the husband to pay debts (k). Since the modern statutes it is sufficient to say, generally, that, under the Married Women's Property Act, 1882, all property of a wife belongs to her as her separate estate, without any special words being required to give that effect, if she is married since 1882 or the property accrues to her since 1882 — in other words, the exception created by equity has become the general rule of law. The first legislative provision or addition to equitable separate estate of wives was given by the Divorce Acts, 1857 and 1858, by {(j) In re Butler (188S), 38 Ch. L. P. Wms. ;51(). This applies to wife's 286; Thovnley v. Thornley, [1893] 2 separate property under a marriage Ch. 229. contract entered into abroad : Ex parte (/() Harvey *'. Harvey (1710), 1 Sibeth (1885), 14Q. B. D. 417; 2Eoper, P. Wujs. 125 ; Burton v. Pierpoint 151, 152. (1722), 2 P. Wms. 78. {j) See Lush, 126, 127 ; 2 Roper, 154. (t) Bennet r. Davis (1725), 2 (A-) 2 Eoper, 154, 702 EFFECT OF MARRIAGE ON PROPERTY — ENGLISH LAW. which, property acquired by a deserted wife after desertion, by her own lawful industry or otherwise, was by means of a protection order made her separate estate (i) ; and the same privilege was enjoyed by a wife judicially separated from her husband (?«) ; or a wife who obtained a separation order under 41 Vict. c. 19. Thus if a wife dies intestate, during separation by decree or a protection order, her property acquired during such time devolves as if her husband were dead and goes to her next of kin(/0. Then by the Married Women's Property Act, 1870, any wages or earnings separately acquired by the wife by her independent skill or labour (o), whether married before or since August 9th, 1870, and any personal property accruing to a wife as next of kin, or any sum of money not exceeding i'200 coming to a wife under a deed or will was made her separate property if married after 1870 {p) ; and the rents and profits of any freehold, copyhold, or customary hold property descending upon any woman married after 1870 as heiress or coheiress of an intestate were similarly made her separate property () I hid., 3. 7. together does not prevent the wife wife's esparate estate, 703 exercise of any literary, artistic, or scientific skill, and to retain any such gains unless there is any contract to the contrary (0- Every woman married before the Act is 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 of the Act (u), including any wages, earnings, money, and property so gained or acquired by her as aforesaid (f). Property includes a thing in action (w). Before this Act, by the Income-Tax Act of 1842, every wife acting as a sole trader or being entitled to property or profit for her separate use is chargeable as if unmarried, but the profits of any wife living with her husband are deemed his profits, and are chargeable in his name and not in that of the wife or her trustee. By the Finance Act, 1897, where the total joint income of a husband and wife charged to income-tax does not exceed ^^500, and that total income includes profits of the wife from any profession, employment, or vocation (Schedule D), or office or employment (Schedule E), a claim for relief is treated as a claim by each spouse separately, by the wife in respect of her profits, and by the husband in respect of the rest of the total income {x). Words creating the separate use are not now necessary as with the old equitable estate. Under it, where an Englishwoman married a Frenchman, and a gift of property was made to her " to her separate use," it was held that these words showed a " contrary intention " to the French law of community being applied, by which one-half of the property acquired by the wife during marriage goes to the children, unless the donor expressed a contrary intention {y) . having a separate trade carried on perty : Liish, 150, citing cases ; In re in that house : Laporte v. Cosstick Bacon, [1907] 1 Ch. 475. (1874), 23 W. E. 131. The Act of (y) Married Women's Property Act, 1882 does not reproduce the words 1882 (45 & 46 Vict. 75), s. 5. " by lawful industry- " of the Act of [w) Ihid., s. 24. 1870, above. (x) Finance Act, 1897 (60 & 61 (<) Married Women's Property Act, Vict. c. 24), s. 5, altering Bowers v. 1882 (45 & 46 Vict. c. 75), s 2. Harding, [1891] 1 Q. B. 560; Lush, (m) This means that the wife must 132, 133. acquire the title for the first time since (y) De SeiTC v. Clarke (1874), L. E. the Act, and a prior reversion falling 18 Eq. 587; Lush, 137. into possession is not separate pro- 704 EFFECT OF MAERIAGE ON PROPERTY — ENGLISH LAW. The Act is not retrospective and does not interfere with previous settlements (z). The wife's powers of disposition of property under the present Act can be gathered from the sections cited above. As regards disposi- tions by will, it was held that under the Act of 1882 property acquired by her after her husband's death did not pass by her will made during coverture, because not being enjoyed during coverture it was not separate property ; but her will required to be re- executed and republished after coverture. This has been altered by the Married Women's Property Act, 1893, providing that a wife's will shall pass all separate property belonging to her at the time of her death, if dying in the lifetime of her husband, or all her disposable property belonging to her at death if she survives him, and no re-execution or republication is required, and this applies to every will of a wife dying after the Act (a). As regards dispositions i)iter vivos a wife can dispose of her con- tingent interest in separate proj^erty, if that interest if falling into possession during marriage would be her sej^arate property (h). She can only bar an entail (equitable), whether property was settled to her separate use before 1882, or is made her separate property by the Act, with her husband's concurrence under the Fines and Kecoveries Act, as this is the only method of barring an estate tail (c). But she can by herself enlarge a base fee into a fee simple by deed without acknowledgment or her husband's con- currence if married since 1882 or if married before the Act in respect of property accruing after, and if in possession she can cut off the entail (d). The devolution of the separate estate after the wife's death was the same before 1882 as that of her other property, the " separate use " determining on her deatb. The husband became entitled to her cJtoscs in possession and chattels real, jure )>ianti, without taking out administration, and by taking it out he became entitled to her cIiosch in action (c). The Act of 1882 has not (z) In re Whitaker, Christian v. Ch. D. 2S8, 295; Chitty, J., thought Whitakor (1887), 34 Ch. D. 227. this was removed by the Act of LS82, ((() 5H & 57 Vict. c. 9.'J, s. 3 ; In re In re Drnmmond, infra. Wylie, [1895] 2 Ch. 116 ; In re Bacon, {d) In re Drnnimond and Davie's [1907] 1 Ch. 475. Contract, [1891] 1 Ch. 524 ; Lush, 160. {h) Lush, 159. (e) Lush, 167—168. ('•) Cooper I'. Macdonald (1877), 7 RESTRAINT ON ANTIOIPATION. 705 altered this devolution : under it, as before it, the wife can dispose of her separate propert}' ; but it seems the jm mariti is abolished, as husband and wife are made distinct legal persons and, therefore, as regards all property acquired since 1882 the husband must take out administration in order to be entitled to what the wife has not disposed of. The jus mariti will still give him, without taking out administration, propert}^ of hers made separate before 1882 (/). As his wife's administrator the husband has all the rights and liabilities in respect of her separate estate, and is subject to the same jurisdiction as she would be if living (r/). Mcirriage revokes a previous will made by husband or wife, unless made in pursuance of a power of appointment w^here the property appointed would not in default of appointment pass to heirs and executors or next of kin of the appointor Qi). A wife can be a trustee or executrix and dispose of real and personal trust property, and she can be the sole protector of a settlement if she has a prior estate (i)- A wife is still unable to act as next friend or guardian ad litem (A). A wife possessed of separate property is liable to main- tain her parents (in England), husband and children, and grand- children till sixteen (in England and Ireland), but the husband continues to be liable as regards the children, and as between him and his wife he is primarily liable. She is not, however, liable to maintain her step-children, legitimate or illegitimate (/), VI. Restraint on Anticipation. — As the separate estate of the wife is the invention of equity, the same Court w'hich invented it might mould and modify its own creation in whatever manner it thought fit. It is by force of the donor's intention, to which, in the case of a feme covert, equity gives effect, that, contrary to the rule of law, a married woman is permitted to hold property in this peculiar manner, and it is strictly in accordance with the same principle, that equity allows such restrictions to be imposed on the separate interest thus given (/) Lush, 169; see p. 683, ante. 34 Ch. D. 46-5. The Married Women's {g) Married Women's Property Act, Property Act, 1882 (45 & 46 Vict. c. 1882 (45 & 46 Vict. c. 75), s. 23. 75), s. 1 (2), which enables a married (/i.) Wills Act, 1883 (1 Vict. c. 26), womau to sue and be sued in all s. 18 ; Lush, 170. respects as a feme sole only refers to {i) Married Women's Property Act, actions relating to herself personally. 1907 (7 Edw. VII. c. 18, ss. 1, 3; (0 Married Women's Property Act, Lush, 176 et seq. 1908 (8 Edw. VH. c. 27) ; 1882, ss. 20, (A-) In re Duke of Somerset (1887), 21 ; Lush, 31, 33, 34. M.L. 45 706 EFFECT OF MARRIAGE ON PROPERTY — ENGLISH LAW. as, by qualifying the extent of her dominion over it, may, in the judgment of the settlor or testator, best secure to the object of his bounty the full and uncontrolled enjoyment of the j)roperty for her own benefit (m). It has, therefore, allowed restrictions to be imposed on that power of alienation which is incident to the enjoj^- ment of separate property. Although it was originally doubted, yet it is now established, that an express declaration that the wife should not dispose by anticipation of her separate estate, will deprive her of that power (u). The ordinary form of the restriction is one providing for pay- ment of the income to the wife for her separate use " so that the said wife shall not have power to deprive herself of the benefit thereof by sale, mortgage, charge or otherwise in the way of antici- pation, and that her receipts only shall be effectual discharges for the same," but any words are sufficient which show that the settlor meant that the wife should not be able to alienate the property (o). Alimony payable to a wife or an allowance to her out of the estate of a lunatic husband is subject to the restriction (])). No limitation over is necessary, and no forfeiture happens if the wife attempts to alienate (q). The restraint does not prevent the wife from barring the entail of separate property settled on her as equitable tenant in tail without power of anticipation (?•), nor from disposing of the property by will or appointing it under a power to that eflect (s) ; nor from exercising the powers of a tenant for life under the Settled Estates Act, 1877, and the Settled Land Act (t). The restraint once imposed cannot be got rid of by consent of parties (except as hereinafter by sanction of the Court) ; it is valid even though the wife fraudulently conceals it and gets an innocent person to advance her money (?0, and her contracts can not be enforced against property so restricted at the time when the (n?) Woodmeston v. Walker (1831), 295; Lush, 2(55. 2 Russ. & M. 197, per Lord Brougham, (q) In re Dugdale (1888), 3S Ch. D. at pp. 205, 206. 176. (?() Jackson v. Ilohhouse (1817), 2 (r) Cooper r. MucJonald (1877), 7 Meriv. 483 ; 2 Roper, Husband and Ch. D. 288. Wife, 230, 233. (s) Ibid. In re Hernando (1884), (o) Hood Barrs i-. Cathcart, [1894] 27 Ch. D. 284, 294. See Lush, 274, 2 Q. B. 559, 569. et *f./. {}>) In re Robineon (1884), 27 Ch. D. {t) Lush, 306. 160 ; Anderson r.IIay (1890), 55 J. P. (») Lush, 275—278. RESTRAINT ON ANTTCIPATION. 707 contract was entered into to the amount of it remaining at the time of judgment, nor against such property accruing afterwards (r). Present Law. — Modern legislation (the Act of 1882) preserves tliis protection for the wife by maintaining " all restrictions against anticipation attached to the enjoyment of any property or income by a woman under any settlement," &c., but " no restriction of a woman's own property made by herself has any validity against debts contracted by her before marriage, and no settlement or agree- ment for a settlement has any greater force or validity against her creditors than a like settlement made by a man would have against his creditors" (x). The creditor of a wife can thus (which he could not do before this Act) (i/) resort to any free separate property which she has at the date of the contract, or acquires subsequently — e.g., which she has in hand at the time judgment is obtained against her — but not income coming to her hands after judgment (z). An Act of 1893 (a) extended this limitation still further. Under it every contract made by a wife, otherwise than as an agent, binds all separate property possessed by her at the time of the contract or afterwards, provided that nothing in it is to render available to satisfy any obligation or liability arising out of such contract, any separate property w'hich at the time of the contract or afterwards the wife is restrained from anticipating (h). This restores the law as it was before 1882, and prevents the creditor resorting to the income of separate property subject to the restraint at the time of the contract, though coming to her hands after the removal of the restraint before judgment (c). It is not clear whether separate {v) Pike V. Fitzgibbon (1881), 17 1893 (56 & 57 Vict. c. 63). Ch. D. 454 ; Chapman r. Biggs (1883), (b) Ihid.,H. 1. The proviso in this 11 Q. B. D. 27 ; Lush, 280. section makes a contract by a wife not (ic) Married Women's Property Act, binding on property as to which she 1882 (45 & 46 Vict. c. 75), s. 19. .See was restrained from anticipation at Hemingway v. Braithwaite (1889), 61 the date of the contract, and such L. T. 224 ; Smith v. Whitlock (1886), property will, after she has become bb L. J. Q. B. 286 ; Beckett v. Tasker discovert by the death of her husband, (1887), 19 Q. B. D. 7. stand entirely clear of any liability or (y) Lush, 280, 281. engagements of hers entered into (z) In re Shakespear (1885), 30 Ch. D. during coverture : Brown i-. Dimbleby, 169 ; Hood Barrs v. Cathcart, [1894] [1904] 1 K. B. 28. 2 Q. B. 559 ; Draycott v. Harrison (c) Barnett v. Howard, [1900] 1 (1886), 17 Q. B. D. 147. Q. B. 784 ; Lush, 281, note {i), 286 ; (a) Married Women's Property Act, 45 — 2 708 EFFECT OF MARRIAGE ON PROPERTY ENGLISH LAW. property of the wife so restricted is liable to satisfy damages recovered against her for her torts committed during marriage, or to make good her breaches of trust (strict!}' only such property as is free from restraint when the tort is committed, and not perhaps income accruing between then and judgment) ("»t- (0 Lush, 295, 296 ; In re Glauvill (/) But see Chuhb r. Stretch (1870), (1886), 31 Ch. D. 532; In re Dixon L. R. 9 Eq. 555. (1887), 35 Ch. D. 4. RESTRAINT ON ANTICIPATION. 709 was SO liable, as she could then sue alone, but income accruing after it was not. Now by the Act of 1893, when the wife herself institutes any action or proceeding, the Court can order the costs of the opposite party to be paid out of her separate property so restricted and enforce it by appointing a receiver or a sale, or otherwise (k). A "proceeding" does not include an appeal (/), nor a petition where she is defendant (?/;), nor an order before 1893 (u), but it does include a counterclaim by a wife even though proceedings were taken before 1893 (o), and by consent of the wife the Court can make an order binding her life interest in such restricted property for costs (j^>). It seems that the wife can also still (as she has been held to be able to do formerly) charge her separate property so restricted for solicitors' costs incurred in successfully defending a suit by her husband to set aside a settlement under which she was so entitled (r^). Where a wife carrying on a separate trade (r) becomes bankrupt, only the dividends of her separate property so restricted will be available for her creditors unless she put on the restraint herself by a fraudulent settlement, and such dividends not paid over to her but in the hands of trustees are available to the judgment creditors (s). Termination. — Such a restriction against alienation will not operate after the coverture has ceased, because it is a mere modifi- cation of the separate use which only exists during marriage (t). The restraint must not infringe the rule against peri)etuities(y.^., exceed existing lives and twenty-one years), and, if it does, the gift to the wife takes effect unfettered by it, though the correctness of this has been doubted (»)• When the married woman becomes discovert, she has the same power over her property as other persons. The attempt to impose upon the power of alienation a fetter unknown to the common law {h) Married Women's Propert J' Act, (p) Sedgwick r. Thomas (1S83), 48 1893 (56 & 57 Vict. c. 63), s. 2. L. T. 100. See generally, Lusla, 298, n., (/) Hood Barrs r. Cathcart, [1S94] 304. 3 Ch. 376. {q) In re Keane (1871), L. E. 12 (m) Hollingtou v. Dear, [1895] Eq. 115 ; Lush, 300. W.N. 35. (r) Seep. 1U, post. {li) Hood Barrs u. Cathcart, ante. (s) Lush, 262, 301. (o) Hood Barrs v. Cathcart, [1895] (t) Lush, 263. 1 Q. B. 873 ; In re Godfrey (1894), {n) Ee Eidley, Buckton v. Hay 63 L. J. Ch. 854; and on appeal, (1879), 11 Ch. D. 645 ; Lush, 306— 309. [1895] W.N. 12. 710 EFFECT OF MARRIAGE OX PROPERTY — ENGLISH LAW. t)f England, was considered to be permitted to the extent to which that power was created by equity, but not further. Though the restraint ceases on the determination of the coverture a creditor who has got judgment against the wife during coverture, on a contract made during it, has no greater rights against her property than he would have if the husband were still alive (x). The restraint can be removed during coverture b}' the Court if that aj)i3ear to be for her benefit (i/), and not in order to benefit her creditors, but " it may be on her demand to be rid of their importunities " (z), unless there is a forfeiture in the event of assignment (a). It may be removed if the husband's death can be presumed by law {b) : if the wife is past child-bearing, there has been a difference of judicial oj^inion, and it seems that a separate examination of the apj^licant is generally necessary (c). Under the old law, where a husband and wife were separated, and there was property of the wife subject to such restriction, it was doubtful whether the restriction continues : probably it does, and the wife does not get control over it (d). The restraint will end on a divorce being pronounced between the parties (e). The effect of the restraint on anticipation is preserved by the Married ^Yomen's Property Act, 1882 (/). VII. Separate Trading by Wife. — The wife also was entitled in equity to hold as her separate property what she acquired by carrying on trade on her own separate account, apart from and without the interference of, her husband. At common law the general rule was that whatever the wife earned belonged to her husband, and she could only contract as his agent, except in the City of London where she could trade as a feme sole, or unless he was a transported convict, or unless she had been deserted by him i;/). The equitable view was adopted by the statutes already referred to — i.e., the Divorce Acts and the Married Women's Property Acts. (x) Becket v. Tusker (1887), 19 {/>) Ibi,/., a04. Q. B. D. 7 ; Pelton v. Harrison, [1801] (c) IhuL, 305. 2 Q. B. 422 ; Married Women's Pro- ('/) Waite r. Morland (1888), liS porty Act, 1893 (.50 & 57 Vict. c. 6:}), Ch. D. 135; Hill r. Cooper, [1893] 8. I ; Lush, 287, 301. 2 Q. B. 85; Lush, 145, 146. (i/) Conveyancing Act, 1881 (44 & (c) Lush, 145. 45 Vict. c. 41), 8. 39(1). (./) 45 & 4() Vict. c. 75, s. 19. (z) Lush, 302, 303. {,,) Lush, 194. (a) Ihiil. CONTRACTS OF MARRIED WOMEN. 711 The effect of these provisions is that the wife is no longer as formerly prima facie agent of her husband when carrying on a trade: and there is nothing to prevent husband and wife being partners in business or from contracting together {k). As regards her creditors, the wife is solely liable in respects of debts incurred in her separate trade, and the husband is not liable (/). She can be made bankrupt in respect of her separate trade, but she is only subject to a j)roprietary, not a personal liability, and all the provi- sions of the bankruptcy law are not applicable against her (/c). A bankruptcy notice cannot be issued against a wife, whether trading separately from her husband or not (/-), not even after the marriage is ended (^)?i), though she can be made bankrupt otherwise (;/). Only her separate property is liable in her bankruptcy, and it does not include property over which she has a power of appointment (in spite of s. 4 of the Act of 1882 providing that the execution of a general power by will of a married woman makes the property appointed liable for her debts and other liabilities in the same way as her separate property), or any thing which would not be " property " if she were unmarried, but the trustee in bankruptcy is entitled to her life estate under a settlement though subject to restraint on anticipation (o). VIII. Contracts of Married Women. — Tlie wife's power of disposi- tion over her separate property has been already considered, and it has been seen how far it may be made available to her general creditors. The next point to be considered is her liability in contract and in tort, during the marriage. The common law does not allow a married woman, except in special cases, to contract as a feme sole, nor, as such, to sue or be sued. The wife cannot, unless in certain exceptional cases, there- fore, at common law, ])ind herself by any contract in regard to her {h) Lush, 202, n., 203. 249; In re Lynes, [1893] 2 Q. B. 113. (i) In re Shepherd (1879), 10 Ch. D. {m) In re Hewett, [1895] 1 Q. B. oio. 328. (/i-) Everj' wife carrj-ing on a trade (h) Lush, 191, 192. See ante. separately from her husband shall in (o) In re Armstrong, Ex parte respect of her separate property be Gilchrist (1886), 17 Q. B. D. 521, a subject to the bankruptcy laws in the power is not property, per Fry, L.J., same way as if she were unmarried : at p. 531, but Lush doubts this : In re Married Women's Propei-ty Act, 1882 Armstrong, Ex parte Boyd (1888), 21 (45 & 46 Vict. c. 75), s. 1 (5) ; Lush, 191 . Q. B. D. 264 ; Lush, 193. (/) In re Gardiner (1S87),20Q.B. D. 712 EFFECT OF MARRIAGE ON PROPER iV — ENGLISH LAW. separate property. Courts of Equity in analogy to the common law, hold that her general personal engagements will not affect her separate property (p). If, therefore, the wife contracts debts generally, without doing any act indicating an intention specifically to charge her separate estate with the payment of them, a Court of Equity will entertain no jurisdiction for an application of such estate in the hands of her trustees to such purposes during her life (q). In contract, as already indicated, before 1883, a wife was incapable of binding herself in law, and the only person liable under any contract of hers was her husband, if it could be held to be within the scope of her authority as agent for him (/•). In equity, however, a decree could be obtained in a contract made by a wife, but only when she had separate property, and the decree was in the form of a declaration that her separate estate was chargeable with tlie amount due on the contract. Her separate estate was charged, but she was not liable to personal process (to be taken in execution) (s), as she was upon a judgment recovered after her marriage against her and her husband in respect of a contract made by her before marriage, and upon a judgment recovered against her and her husband in respect of a wrongful act done by her during the marriage (0- The Married Women's Property Act, 1882, gave to a wife legal capacity of entering into contracts, and "making herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued in contract or otherwise in all respects as if she were unmarried, . . . and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or legal proceeding brought by or taken against her («), and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate propert}' and not otherwise, "and the Act contained a further provision (since repealed) that every contract entered into by a wife shall be deemed to be a contract . . . with respect to and bind her separate property {p) Ilulmey. Tenant (1775)), 2 Dick, Scott v. Morley (1887), 20 Q. B. D. 500, 5U2. 120, at pp. 124, 125. (7) The Duke of Bolton v. Williams («) Ibid. (1793), 2 Vcs. 138; Jones v. Harris {t) Ibid. (1S04), i) Ves. 480, 4!)8 ; Greatley v. {u) Married Women's Property Act, Noble (1818), 3 Madd. 7!), 94. 1882 (45 I'v: 40 Vict. c. 75), s. 1 (2). (r) See per Jjord lusher, M.H., in CONTRACTS OF MARRIED WO.MF.X. 713 unless the contrary be shown (,c), and every contract of a wife to bind her separate property should bind not only her present, but her after-acquired separate property 0/). Under this Act it was held that a person suing a wife on a contract must show that she had separate property at the time of entering into it, and that the separate property which she actually had must be such that she could be reasonably presumed to have contracted with reference to it (s). This new liability on her contracts, to which she was not subject before the Act of 188^, is governed by the new remedy provided in the same Act, and is a proprietary and not a personal one, just as was the case before the Act in equity ; and thus a wife cannot in respect of a judgment obtained against her under the Act be com- mitted to prison for default in payment of any debt under any order or judgment of the Court (a), though she can be proceeded against personally (ej/., by distress and committal) for a liability not imposed by the Act — e.g., rates (/>). A further step was taken by the Act of 1893 (e), which provided that every contract entered into by a wife otherwise than as agent shall be deemed to be a contract entered into by her with respect to and bind her separate property, whether she is in fact possessed of or entitled to any separate property at the time of entering into such contract, and shall bind all present and future separate property, and shall be enforceable by process of law against any property she may thereafter become possessed of or entitled to while unmarried; but nothing shall make available to satisfy any liability or obligation arising out of such contract any separate property which at that time or thereafter she is restrained from anticipating (f/). It is thus no longer necessary to show that the wife had separate property at the time of the contract, but it has not been decided under this Act whether it is necessary to show that the wife sued has separate property at the time of trial or judgment. Though there are decisions pointing both ways, it is thought that probably (a-) Married Women's Property Act, (i) In re Allen, [1.S94] 2 Q. B. 924 ; 1882 (45 & 46 Vict. c. 75), s. 1 (3) ; Lush, 349. In re Shaw (1906), 94 L. T. 93. (c) Married Women's Property Act, (.V) 45 & 46 Yict. c. 75, s. 1 (4). 1893 (56 & 57 Vict. c. 63), repealing s. 1 (z) Lush, 349, citing cases. (3), (4) of the Act of 1882. (o) Debtors Act, 1869 (32 & IVS Vict. (d) lhi,) Butler v. Butler (1885), 14 Q-B. D. 103. Q. B. D. 831, 836, Wills, J.; and (./) Hoare /•. Niblett, [1891] 1 Q. B. on appeal, 16 Q. B. D. 374, Lush, 442. 7S1 ; Lush, 363. CONTRACTS BETWEEN HUSBAND AND WIFE. 715 with her husband as regards her separate estate — e.g., by makiag a loan of it to him (o). The Married Women's Property Act, 1882, now enables spouses to contract inter se not only with regard to the wife's separate estate, but as freely as the wife could with any person other than her husband (p) ; but it does not enable the wife to contract with her husband with regard to real estate held by her before the Act not settled to her separate use (q). The Act, however, specially provides for the repayment to the wife of a loan made by her to her husband for the purpose of any trade or business of his on his bankruptcy, such loan being treated as assets of his estate, but reserving the wife's claim to a dividend as a creditor for the amount or value of the loan after, but not before, all claims of the other creditors of the husband for valuable consideration in money or in money's worth have been satisfied (7*). This applies only to the case of a husband carrying on business by himself, for where he has partners the wife can prove in the bankruptcy of the firm jx^n'i j'^ss^ with other creditors, and it does not appl}^ to loans other than business loans made by her to him, though she must prove that the trans- action does not fall within the section (s). Except that the wife can also, as she could before 1882, retain, as administratrix of her insolvent husband's estate, a loan made by her out of her separate estate to him for his business (t), her loans to him for trading purposes are postponed to claims of other creditors (a). A w'oman living with a man as his wife, but not legally married to him, is put in the same position as a legal wife in this respect (r). Certain contracts between spouses were formerly void on grounds of public policy — ;. 1 ; see C. 538. o7ite, passim. (a) Hope ('. IIope(lS57), 8 De G. M. (ush, chapter xiii. Q. B. D. 339 ; Symonds \. Ilallett {(l) Lush, 503 ; Slatter r. Slatter (1883), 24 Ch. D. 340. (1834), 1 Y. & C. Ex. 28. (h) Married Women's Property Act, (e) See Lush, chapter xiv. 1882 (45 & 40 Vict. c. 75), s. 16. (/) Married Women's Property Act, (/) 7/)/V/., s. 17. TORTS OF WIFE DURINfl MARRIAGE. 717 X. Torts of Wife during Marriage. — Before 1883 at common law the wife's position as regards post-nuptial torts was the same as regards ante-nuptial debts or torts : as she could not sue or be sued alone, the husband was joined with her, and both were liable to be sued in respect of torts committed by the wife without the husband's participation or authority. On the dissolution of marriage (but not if the spouses were only living apart) the husband's liability ceased. The wife's separate estate was not available in equity to satisfy her general torts, but it was indirectly at law, ])ecause she was liable to arrest and imprisonment under a writ of ca. sa., and the Court would not discharge her unless she had >io separate estate. On the death of her husband she became personally liable for post- nuptial torts ; and during the marriage she could make her separate estate lial)le for frauds committed in tlie course of her dealing with it, and her separate estate, unless restrained from anticipation, was liable to make good any misfeasance of hers with regard to property in which she had only a limited interest (k). The Act of 1882 put an end to this shadowy legal position of the wife by giving her a sul)stantial, independent juridical position as regards torts or otherwise, similar to that in the case of contracts already noticed, and with a similar exemption to the husband {!). He, however, still remains liable to be sued with the wife, as before the Act (/»), for her post-nuptial torts, though not in respect of such torts if at the time of action the spouses are actually separated (n). The Act does not effect torts of the wife committed Avithin the scope of her authority as agent for her husband (o), or torts of hers in which he shares. Her liability is not affected by whether she has separate property or not, whatever may be the case as regards contracts ( p). There are certain other proprietary relations between the spouses not derived from express contract between them. Two of them are exceptions to the common law rule, that all personal chattels and choses in possession of the wife became the absolute xjroperty of the husband, and they thus form a kind of separate estate — namely, pin-money and paraphernalia. {k) Lush, 327 — 331, jx«6smh. («) Cuenocl v. Leslie, [1909] 1 {I) Married Women's Property Act, K. B. 8S0; Earle r, Kingscote, [1900] .1882 (45 & 46 Vict. c. 75), s. 1 (2). 2 Ch. 585. {m) Seroka ?'. Kattenburg (1886), 17 (o) Lush, 332. Q. B. D. 177 ; Scott v. Morley (1887), (/>) See ante, pp. 711 et seq. 20 Q. B. D. 120, 125. 718 EFFECT OF MARRIAGE OX PROPERTY ENGLISH LAW. XI. Pin-money. — Gifts by the husband to his wife for clothes, or to ijurchase ornaments, or for her sei3arate expenditure, either by yearly allowance settled ujjon the wife before marriage, or by gratuitous gifts or i3ayments afterwards made by him to her from time to time, are known by the name of pin-money. "When a settlement is made for this purpose previous to the marriage, it will be binding not only upon the husband, but also upon his creditors. The wife's savings out of pin-money and other similar allowances to her by her husband, such as certain produce of a farm, not in pursuance of an ante-nui^tial contract, are not exemj)t from the husband's debts but are assets in the hands of his executor, though protected from voluntary claims {q) ; and arrears of pin-money are only recoverable for a year (r). The husband has also the right to savings out of household money remitted by him to the wife unconditionally and banked by her in her name (s). Since the recent statutes (already referred to) all that the wife acquires from her husband or from a stranger becomes her separate property, and pin-money need not therefore be distinguished from other property {t) unless a gift is made by a husband to his wife expressly as " pin-money " (?')• XII. Paraphernalia.— Since the recent legislation, property of any kind, whether articles of personal use or adornment, acquired by a wife belong to her as her separate property, though not limited to her separate use ; but perhaps if such articles were given to her expressly as "paraphernalia " the former law would apply ; if there is nothing to show that they are intended to serve as paraphernalia only, they will probably become her separate property (a). Jeune, P. doubted this view, and held that the 1882 Act did not affect para- phernalia on the ground that " the creation of paraphernalia did not imply, nor was dependent on the legal identity which for most (7) Williams, Executors, i. 583. see Williams, Executors, i. 5S2— 584 ; (r) Peacock v. Monk (1751), 2 Ves. Howard v. Digby (1834), 2 CI. & Fin. Sen. 190; Thrupp v. Ilarman (1834), 3 G34 ; Jodroll v. Jodrell (1845), 9 Beav. My. & K. 513 ; Williams, Executors, i. 45, 54, bb. 583 ; and eeo Burgc, Ist ed., i., 53-1. {k) Lu.sli, 65. (s) Birkett!;.Birkett(1908), 98L.T. (o) Williams v. Mercier (1884), 10 540. App. Cas. 1 ; Lush, 62, 63 ; but see (0 Lush, 63—05, gives the law; iind Tasker r. Tasker, [1895] P. 1. PARAPHERNALIA. 719 purposes existed between husband and wife before that Act, and was so largel}^ modified by it " (/>), but his reasoning has since been doubted (c). The account given in the former edition of the law relating to paraphernalia must be taken as subject to this qualification (cc) . The law of England uses the term paraphernalia in a sense different from that in which it is used in the civil law. It is applied to the apparel and ornaments of the wife, suitable to her rank and degree, given to her by her husband ((/). Pearls and jewels, whether usually worn by the wife, or only on birthdays and other public occasions, are to be considered para- phernalia (e). Old family jewels are not, unless bequeathed specially to the wife (./'). It will make no difference, as to the widow's right, that the jewels, &c., were in the custody of the husband, if the wife occasionally wore them (g) . There is an important distinction between gifts of the husband to the wife for her separate use, and gifts by him to her as para- phernalia ; for she may dispose absolutely of the things given to her for her sej)arate use ; but when the husband gives them to her expressly for the adornment of her person, she cannot, according to the law of England, dispose of them by gift, or will, during his life (h). But the husband may sell them, or give them away in his lifetime (i), although he cannot dispose of them by will during her life {h) ; and they are liable to his creditors, in case of a deficiency of assets (/). But the widow's claim to her paraphernalia is preferred to that of a legatee of her husband, and, therefore, they will not be liable to satisfy any of the testator's legacies, either general or specific (?/0- (b) Tasker i;. Tasker, sujmi, at p. 4 ; Atk. 77, 79. Williams, Executors,!. 584 — o90, takes (A) Cxrahaui v. Lord Loudoudeny the same view. (1746), 3 Atk. 393, 394. (c) Masson, Templier & Co. v. (i) Ibid. De Fries, [1909] 2 K. B. 831. (/<;) 2 Eoper, 141. {cc) Burge, 1st. ed., i., 536. (/) 2 Bl. Com. 436, Kerr's ed. 389; {(I) 2B1. Com. 436, Kerr's ed. ii. 389; Willsou v. Pack (1710), Pre. Ch. 295 ; 2 Roper, 140, 141. Eidout v. Earl of Plymoutli (1740), (e) Bui'ge, 1st ed., i. 536, citing 2 2 Atk. 104 ; 2 Eoper, 142, citing Eoper, i. 141. cases; Lush, 62. . (/) Laingi'. Walker, (1891) 64 L. T. (m) Snelson v. Corbet (1746), 3 Atk. 527 ; Lush, 61 ; Jervoise v. Jervoise 369, 370 ; Graham v. Lord Londou- (1853), 17 Beav. 566. derry(1746j, 3Atk. 393; 2 Eoper, 145— {g) Northey v. Northey (1740), 2 149. 720 EFFECT OF MARRIAGE OX PROPERTY ENGLISH LAW. If the husband pledge his wife's paraphernalia as a security for money, the wife surviving him will be entitled to have them redeemed by his executors out of her husband's personal estate, if sufficient for that purx)ose, after payment of his debts (??). If the husband should bequeath to his wife all household goods, furniture, plate, jewels, linen, &c. for life, or widowhood, with remainder over, this will not bar her paraphernalia (o). But, in such a case, if the widow does not, by some act in her lifetime, manifest her election to take them, by her elder and better title, her executor or administrator cannot lay any claim to them after her decease (jj). B3' the civil law bona parapliernalia, in all cases, go to the wife to the exclusion of the executor, and they are not subject to pajanent of the husband's debts {q). Where the creditors have a double fund, the widow is entitled to marshal the assets against the heir and against a devisee in trust for payment of debts, but qu(Ere whether against a devisee simply (r). She may bar her right to para- phernalia by accepting marriage articles (s). Paraphernalia are, in their nature, materially distinct from gifts of jewels, &c., to the wife, by third persons for her separate use, as the latter may be alienated by the wife in the lifetime of the husband, and are not liable to his debts. With respect to what shall be considered as given to her separate use, it has been held that diamonds, which had been presented to the wife by the husband's father, on her marriage with his son, were to be considered as a gift to the separate use of the M'ife, and to which she was entitled in her own right (0- But jewels, &c., presented to the wife by the husband himself, before marriage, were not exempted from being liable to his creditors ; for immediately on the marriage the law gave them to the husband, and he cannot be considered as a trustee of them for her separate use afterwards. Now, under the Married Women's Property Act, they belong to the wife, and the husband has no interest in them (?()• (/<) Graham v. Lord Loiuloiideny (7) Williams, Executors, i. oS7. (1740), ;] Atk. ;i9:j. (?•) ibid., i. 588. (o) Marshall /•. Blow (1741), '1 Atk. (s) Tbkl, 589. -17. (t) Graham v. Lord Londonderry {p) Clarges v. Albemarle (IG'Jl), 2 (174G), 3 Atk. 39;J. Vera. 245, 247 ; 2 lloper, 150. (») Eidout v. Earl of Plymouth OTHER TROPRIETARY RELATIONS BETWEEN SPOUSES. 721 Xill. Other Proprietary Relations between Spouses, — Insurances. — ■ Another proprietary relation between tlie spouses may be created by insurance effected by one spouse on liis or her life for the benefit of the other. The wife may now effect a policy upon her life or on the life of her husband for her separate use, and take all benefits under it (x) ; and a policy by a husband on his own life and expressed to be for the benefit of his wife and children, or vice rersa, by a wife on her own life and expressed to be for the benefit of her husband and children creates a trust in favour of its objects, and the moneys payable under such a policy are not included in the estate of the assured, nor are subject to his or her debts so long as any object of the trust is unperformed (.?/). This is, however, subject to a proviso that, on proof that the policy was effected and premiums paid with intent to defraud the creditors of the assured, they are entitled to receive out of the moneys payable under the policy a sum equal to the premiums so paid (z). If the death of the insured under a policy effected by him for the benefit of his wife is caused by the felonious act of the wife, his executors can sue on the policy, but the trust in favour of the wife is incapable of performance, and the insurance money belongs to the insured's estate, no question of public policy arising between his representatives and the insurance company (a). In the Act of 1870 a similar power was given to the husband to insure his life for the benefit of his wife and children (b), and they took as joint tenants {c). The wife may insure her own or her husband's life for her benefit, and the husband can insure the life of his wife for his own benefit, stating that it is so under the general law (d). Dealings by One Spouse with Property of the Other. — The Act of (1740) 2 Atk. 104, 105; cited by (c) Ee Davies' Policy Trusts, [1892] Williams, Executors i. 589, 590. 1 Ch. 90, following In re Seyton (1887), (x) Married Women's Property Acf, 34 Ch. D. 511 ; for a similar result 1882, s. 11. imder a foreign law introduced by (y) Re Parker's Policies, [1906] 1 contract, see Ex parte Dever, In re Ch. 526; Prescott v. Prescott, [1906] Suse and Sibeth (1887), 18 Q. B. D. 1 Ir. E. 185. 660, New York law. (z) Married Women's Property Act, (f?) Life Assurance Act, 1774 (14 1882, s. 1 1. Geo. III., c. 48), s. 2 ; Evans v. Bignold (a) Cleaver v. Mutual R. F. L. Ass., (1869), L. R. 4 Q. B. 622 ; Griffiths f. [1892] 1 Q. B. 147. Fleming, [If 09] 1 K. B. 805 ; see Lush, (/)) Married Women's Property Act, 2.38—244. 1870 (33 & 34 Vict. c. 93), s. 10. M.L. 46 722 EFFECT OF MARRIAGE ON PROPERTY EXGLISH LAW. 1882(e) also deals with investments made by the wife with money of the husband without his consent, and allows the latter to recover them ; and if the husband makes any gift of property to his wife but such property continues in the order and disposition, or reputed ownership, of the husband, or a deposit or investment of his moneys is made by or in the name of the wife in fraud of his creditors, their rights are not aflfected, and such moneys may be followed. Before 188"2 chattels in the actual possession of husband or wife were in law in the possession of the husband, and if her sejjarate estate were allowed by her trustee to remain in the hus- band's possession contrary to the terms of the trust the result was the same ; but if the terms of the trust admitted of this, such property of hers was not in the husband's possession. Since 1882 possession of both parties is not possession of the husband, but of the party entitled to the property (/). The husband niaj now make a valid gift of chattels to the wife by deed or by parol and delivery subject to the above provision (g); but gifts by the wife to the husband are not touched b}^ the section above cited (//), and fall under the next head. XI \. Gifts Inter Conjuges. — Marriage does not preclude the husband and wife, even during its continuance, from taking from each other by gift or purchase, and the means b}' which it is to be efi'ectuated are not now different from those which would be required if they were strangers. Thus, as the common law regards the husband and wife as one person, they could not by any common law conveyance take immediately from each other any estate either in possession, reversion, or remainder ; but the Statute of Uses (/) enabled them to take by limitation of a use (j). Since 1882 a husband or wife may convey a freehold estate or chose in action to the other either alone or jointly with another person ; a wife may acquire and disjDose of realty and personalty of all kinds as if unmarried, and she may possess a chattel in her own right (k). The ordinary rules of law applicable to gifts between (0 S. 10. (/) Statute of Uses (27 Ilei.. VIII., (/) Ramsay v. Margrett, [1894] 2 c. 10). Q. ]}. 18 ; and see Lush, 2-17— 2.jo. (./) 15urge, 1st ed., i., 5uO ; Litt. Sect. (.'/) IJashall r. Bashall (IHill), 11 KicS ; Co. Litt. 187 I). T. L. II. 152. (/.) Ramsay i: Margrett, [1891] 2 (A) S. 10; Lush, 258. MARRIAGE SETTLEMENTS. 723 otlier persons now apply equally between spouses. It seems, therefore, no longer necessary to retain here the account of the law previous to 1883 as to presumptions of law applicable to transactions between spouses — ejj., advances, expenditure, &c. — contained in the last edition (/). XV. Marriage Settlements. — Neither the parents, nor the husband, nor wife are under any legal obligation to give to each other, by nuptial contract or settlement, any interest in their property. They may marry without making any settlement ; and, except in those instances in which a Court of Equity interposes for the protection of the female, they may be left to the enjoyment of those rights and interests which the law gives them. But it has been seen that the wife's property may be so settled as to exclude or abridge the rights which the husband would otherwise have acquired in it by the marriage, and he may thus be barred of his curtesy and of his interest in the wife's property. The husband may have made such a settlement on his wife as to h'uve acquired an interest in her proj^erty to which he would not otherwise have been entitled. He may also make such a settlement on her of his own property as to exclude her from the dower to which she would otherwise be entitled. Dower. — By the common law the widow's acceptance of a col- lateral satisfaction of or out of lands in which she was not dowable was no bar to her title to dower in those to which that title attached (?yi). The effect of the Statute of Uses upon the convey- ances which affected the greater part of the lands in England was to entitle the widow-at-law to dower in all her husband's unsettled estates of inheritance, whilst she might at the same time retain the lands which had been settled upon her in lieu of that right (w). This inconvenience, as well as injustice, induced the legislature to pass a statute (o) enabling the husband to bar effectually his wife's right to dower by making a provision for her hcfore marriage in lieu of it. This provision is known by the name of jointure. Jointure. — It is defined by Lord Coke to be " a competent livelihood Q. B. 18 ; Bashall v. BasLall (1894), 11 (-m) Co. Litt. o'6 b. T. L. E. 152; Weldou v. De Bathe [n) Vernon's Case (1572), 4 Co. Eep. (1884), 14 Q. B. D. ^39 ; Lush, 207. 1 ; Gilb. Uses, 321. (/) Burge, 1st ed., i., 551-554. See (o) Statute of Uses (27 Hen. VIII., Dunbar v. Dunbar, [1909] 2 Ch. 629, c. 10), s. 6 (s. 4 Stat. Rev.) ; Earl of and generally see Lush, ch. vii., pp. Buckinghamshire r. Drury (1761), 211 etseq. 2Eden, 60, 74. 46—2 724 EFFFXT OF MARRIAGE ON PROPERTY ENGLISH LAW. of freehold to the wife, of lands and tenements, to take effect presently in profit, or possession, after the decease of the husband, for the life of the wife at the least " (q). "Whether legal or equitable, jointure bars the wife's right to dower (r). The jointure must be made before the marriage, in order to be a complete and irrevocable bar to dower (s). But even if it should be made after the marriage, either by deed or will (0, it would be a jointure within the statute, if made according to its directions, but it would be roidahle by the widow, after her husband's death, at her election (tt) . It is, how- ever, no longer of iDractical importance to consider the question of a widow's dower being barred by jointure (r), as, since the Dower Act, dower can be excluded by deed or will (a:-). Binding Effect of Settlements. — The recent legislation has not affected the power of the parties to a marriage to make what arrangements they please as regards their mutual rights over their own or each other's property, the Act of 1882 (s. 19) providing that nothing therein 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 a married woman. For the provisions usual in practice in marriage settlements reference must be made to the standard authorities (z/), and attention can only be called here to certain heads of the subject. The efiect of s. 19 of the Act of 1882 has been judicially con- sidered in connection with s. 5 of the same Act, providing that property acquired after the Act by a woman married before the Act is to be held by her as n/eine sole, under a covenant in a marriage settlement made before the Act by the wife to settle after acquired property, and s. 19 has prevailed (z) ; and that section has also been interpreted in connection with s. 2 of the same Act with regard to settlements made after the Act, with the same result («). But by {q) Co. Litt. 36 h, ;i7. EucycL of Eng. Law, xiii., 296. (r) Lush, 119. (z) In re Stouor (1883), 24 Ch. D. («) Co. Litt. 36 b. 195; In re "Wliitaker (1887), 34 (<) Vernon's Case (1572), 4 Co. Eep. Ch. D. 227; Beckett r. Tasker 1—4. (1887). 19 Q. B. D. 7; lu re {h) Burge, 1st ed., i., 539 ; Co. Litt. Queade's Trusts (1885), 54 L. J. Ch. 36 b. 786. (v) See Burge, Iwt ed,, i., 539—548. (a) Stevens v. Trevor - Garrick, (x) Seep. 691, ante. [1893] 2 Ch. 307. For the meaning (//) JJavidson, Key and Elphinstoue, and eli'ect of this covenant, see Lush, ivc, Precedents in Conveyancing; 568— 582 ; Williams ;■. Morcier (1884), I\rARRIAGE ARTICLES. 725 an Act of 1907 a husband cannot now bind his wife's property by settlement unless she executes the settlement or confirms it after attaining majority (?>). Where a trust is created by ante-nuptial settlement for the maintenance of infant children it must be executed for their benefit ; but the father can execute it and then reclaim recoupment of his expenditure for such purpose (c), but he cannot do so in the case of a post-nuptial settlement (d). A husband can take, under a provision in a marriage settlement, in favour of " personal representatives " of the wife in an ultimate limitation unless the context shows he is to be excluded (f), and persons taking under a limitation to " next of kin under the Statute of Distributions " take as tenants in common, not as joint tenants if). Marriage settlements or agreements must be made in writing (g). Before 1882 a contract between husband and wife, made before marriage, was suspended by marriage in law, though in equity the parties could make contracts relating to her separate estate (//). Now they are always separate persons, and a husband is liable in damages to his wife for breach of a promise on the strength of which the marriage takes place (r). Part performance will, how- ever, take a case out of the statute (k) . Marriage Articles. — Where marriage articles are made pending a future marriage settlement which is never made, the articles are a valid contract and can be enforced by the wife or children (/). Where marriage articles and a settlement are both made, the former generally prevail, and the latter will be made to conform to them, 10 App. Cas. ] ; In re Garnett (1886), L. R. 6 Eq. 001. 33 Ch. D. 300; Dawes r. Creyke (g) Statute of Frauds (29 Car. II., (1885), 30Cli. D. 500. QiKere, whether c. 3), s. 4; Hastie n. Hastie (1876), 2 it applies after judicial separation: Ch. D. 304; Lush, 538. Hilbers v. Parkinson (1883), 25 Ch. D. (h) Fitzgerald v. Fitzgerald (1868) 200. L. E. 2 P. C. 83 ; Lush, 442, 443. {h) Stat. 7 Edw. VII., c. 18, s. 2; (») Synge /•. Synge, [1894] 1 Q. B. and see p. 727. 460. ((•) Mundy v. Howe (Earl) (1793), 4 (A-) Hammerslej^ r. Baron de Biel Bro. Ch. Cas. 224; Wilson v. Turner (1845), 12 CI. &F. 45, 64, n. ; Lassence (1883), 22 Ch. D. 521. v. Tierney (1849), 1 Mac. &G. 551, 571; (d) Kerrison's Trusts (1871), L. E. Jorden v. Money (1854),5H.L. C. 185, 12Eq. 422; Lush, 585. 210; Lush, 541, 542; see Ex parte (e) Ee Best's Settlement (1874), L. E. Whitehead (1885), 14 Q. B. D. 419. 18Eq. 686. (?) Glenorchy r. Bosville (1733), 1 (/) Ee Banking's Settlement (1868), Wh. & Tud. L. C. Eq. 1. 726 EFFECT OF MARRIAGE ON PROPERTY ENGLISH LAW. especially if it recites them (in). Where there is mutual mistake the Court can rectify the settlement after any lapse of time(//). Settlements are construed strictly ; articles according to the inten- tion of the parties (o). A Court which decrees dissolution of a marriage can vary marriage settlements whether ante- or post-nuptial ones( jj). Unless express power of revocation is given in the settlement its trusts are irrevocable, unless the marriage is void, even before the marriage takes place, or if the contemj)lated marriage never takes place (though the parties cohabit and have children), but this contingency is generally provided for by the settlement (5). Power of Infants to settle Property. — ThejDower of infants to settle property on marriage is governed by the general law, but provision has also been made for it by statute. A settlement by an infant, if by deed, is valid if not repudiated by him or her within a reasonable time after majority ; if he repudiates it, it does not bind him, and non-repudiation may be shown by evidence of confirmation (y). Statutory provisions (s) prohibit any action to charge any person on any ratification after full age of any promise made during infancy, whether there is any new consideration or not for such ratification, in case of acts by an infant which need ratification. Before 1882 an infant wife covenanting before marriage to settle after-acquired propert}' was held only to bind such separate proj)erty as was such at the time that she confirmed the covenant when of age, the confirmation having the effect of a new contract (t). Since 1882 such a covenant binds all after-acquired property, except such proj)erty as is subject to restraint on anticipation, whether the wife covenants in a post-nuj)tial settlement or confirms such a covenant in an ante-nuptial settlement (u) ; and such confirmation is of no (m) Lush, 545, 546. 742 ; Lush, 551, 552. {>i) Ibid., 547, 548. (r) Edwards v. Carter, [1893] A. C. {(>) Ilnd., 549. 360, mau : He Hodsou, [1894] 2 Ch. {j/) Matrimonial Causes Act, 1859 421, woman : Lush, 553. (22 & 23 Vict. c. 61), s. 5 ; Noel v. (s) Infants llelief Act, 1874 (37 & 38 Noel (1885), 10 P. D. 179; Farrington Vict. c. 62), s. 2. V. Farrington (1886), ll P. D. 84 ; A. {t) Smith >: Lucas (18.S1), 1.S (.'h. D. V. M. (1884), 10 P. D. 178; so on pro- 531. nouncing nuUitj- of marriage: Lush, {ii) 13uckmaster /•. Buckmaster 550. (1887), 35 Ch. D. 21 ; Seatou r. Seatou (y) Paul r. Paul (1882), 20 Ch. D. (1888), 13 A. C. 61. infants' settlements. 727 effect in a case where there was incapacity to settle, unless confirma- tion amounts to an election, or in a case where incapacity is due to marriage, unless confirmation amounts to a disposition made while the infant is unmarried (,r). Where only one party to a marriage settlement is under age the other is bound, except where it is made under the Infants' Settlements Act or there is fraud by the infant (jj). A party who does not confirm such a settlement must elect between adopting the deed or disregarding it altogether ; but a wife need not elect where she is given an interest subject to restraint on anticipa- tion by the instrument owing to which the question of election arises; but if she does not, her heir must, although an infant (z). The Infants' Settlements Act was passed in 1855 to enable infants to settle property irrevocably on marriage, Male infants of twenty and female infants of seventeen are thereby enabled in contemplation of marriage to make a valid and binding settlement, which perhaps includes post-nuptial settlements (a), or contract for a settlement of all or any part of his or her pro[)erty, or proj^erty over which he or she has any power of appointment, whether real or personal, whether in possession, reversion, remainder, or expec- tancy, and to convey the same for the purposes of such settlement, %ith approbation of the Court {b), with a j^roviso that if any disen- tailing assurance is executed by any infant tenant in tail under the Act, and he dies an infant, it is void. The Act removes the disability of infancy only and not that of coverture, and a settlement made by an infant during marriage of a reversionary interest in per- sonalty though made with the sanction of the Court has been held not valid if not in accordance with Malins' Act(c) {i.e., acknowledged and concurred in by husband). An infant is liable for the legal expenses of a settlement as "necessaries " (d). By the Married Women's Property Act, 1907, a marriage settle- ment made by a husband, which is not executed or confirmed by the wife on attaining majority, is not valid, except that if she dies an infant, any covenant or disposition by him binds any interest in her property, to which he becomes entitled on her death, and (.r:) See note {u), ante. (18 & 19 A'ict. c. 43), s. 1. {%j) Lush, 556, 557. (c) See p. 671. (z) Ibid., 557, 558. {d) Helps v. Clayton (1864), 17 C. B. (a) See uote («), ante. N. 8.553; De Stacpoole r. De Stacpoole {h) lufauts' Settlements Act, 1855 (1887), 37 Ch. D. 139 ; Lush, 560. 728 EFFECT OF MARRIAGE ON PROPERTY ENGLISH LAW. which he could have bound ov disposed of before the Act (e). This appHes to all settlements made since 1882. Ante-nuptial and Post-nuptial Settlements. — Ante-nuptial settle- ments prevail not only against the husband, but against his creditors and subsequent purchasers, if they are bona fide made before and in contemplation of marriage, but they may be invali- dated for fraud (ee). If the settlement is not made in consideration of marriage a sub- sequent marriage will not validate it, and if made in consideration of a marriage void owing to the parties being within prohibited degrees or if made for a marriage abroad not legal here a settle- ment will be voluntary (/). Inter partes, however, it holds good if ante-nuptial, though the marriage is illegal (a). As marriage articles are as binding as a settlement against creditors, a post- nuptial settlement made in pursuance of a valid ante-nuptial agree- ment is equivalent to an ante-nuptial settlement — e.g., an infant's ante-nuptial settlement confirmed after marriage. If the settlor is indebted at the time, the settlement is only good as against creditors in favour of persons who are really " purchasers " under it; and such a settlement, though set aside as a fraud on creditors, is still good inicr pavt<'s {}>). Purchasers and Volunteers. — Any person within the range of the marriage consideration is a " purchaser," as opposed to a person who is outside it, and is termed a "volunteer." Only purchasers can compel performance of the settlement ; and breach of it by one party does not, as in the case of other contracts, release the other, though the defaulter cannot take the benefit of it unless the covenants made by each party are made dependent on their mutual fulfilment, or unless the defaulter is interested by the property being settled on failure of issue to revert to himself. Children are purchasers if the contract is ante-nuptial or in pursuance of marriage articles ; if it is post-nuptial they are volunteers (i) : persons to whom the parties have appointed the (') Married Women's Projierty Act. c. Jenkins (187;3), L. \l. IG Kq. 275. 1007 (7 Edw. VII., c. 18), s. 2. {ts, but that, in case of the wife predeceasing her husband, her rights should cease. The Act reserved, however, to the wife the right of " making a will of the lands, premises, and effects aforesaid, even in the lifetime of her husband as heretofore accustomed in favour of the lawful issue of her body (m) or of her husband, but of no other person whatsoever." This right of dower could be barred by settlement before marriage, and this enactment left it still in the power of the wife to prejudice her husband's rights should there be issue (?) Uhi supra, at p. 144. C'ourt of first instance held that the (k) Stats, of I. of Man, i., .VS'S. child was illegitimate. The Judges in {!) S. 1. the Appellate Court were equally {m) Legitimation by subsequent divided in oi)inion. A settlement of marriage of a child born "within a the case prevented an appeal to the year or two " (Act of 1594, s. 11) of the Privy Coiuioil : see Mr. King's article, man-iage although more than two uhi tfiipra, at p. 149. In Quane v. years have elapsed since the child was Quane it was held by the Privy conceived (Quane r. Quane (18o2), 8 Council that the customary law of ^foo. P. C. (hi) is recognised. The legitimation, declared in the Act of (lu(!stioTi whether two years is the ]")!i4, applied to a case where more Tiinximum period allowed was raised than one child had been born before in a recent case, where the period was the marriage: see also Stats, of J. of two years and nine months. The Man, ii., .'J.jS. CANADA OTHKR THAN QUEBEC CURTESY. 733 of the marriage, or even of a previous marriage on the part of the wife herself. This state of the hiw ^Yas amended b}- an Act of May *25th, 1852 (n), which deprived a wife dying before her husband of all interest in his purchased lands, and provided that her dower in such lands should consist of one-half absolutely, in case the marriage took place before January Gth, 1853, and of one-half for life where the marriage was subsequent to that date. " Dower (o) was never, as in England, a claim superior to debts of the husband, where the land belonged to the class liable to debts. It was also easily released, the wife simply joining her husband in the conveyance. Fines and recoveries were barbarisms unknown to Manx law, and the Celtic wife was considered quite capable of protecting herself against the coercion of her lord without resort to the formality of a separate examination. An equitable estate has always been liable to dower as well as curtes3^" According to Manx law there is no such doctrine as that of the wife's equity to a settlement (j)). Among recent enactments relating to the property of married women may be noted the Conveyancing Act, 1908, s. 21, which enables the Court to bind the interest of a married woman, notwithstanding that she is restrained from anticipation, and the Married Women's Real Property Act, 1908, which provides that a married woman during coverture may devise all real property, and any interests therein, belonging to her in her own right, as fully as if she were a feme sole, subject, however, to any estate or interest of her husband therein by curtesy or otherwise. Canada. — The law of Quebec with regard to the marital reyime of property has been already stated. For the other Provinces the subject may be considered under the heads of — (1) Curtesy ; (2) Dower ; (3) Married Women's Separate Property. Curtesy. — The right of a husband to his estate by the curtesy in the lands of his deceased wife has been subjected to many limitations in many of the Provinces of Canada by provincial statutes, and in particular by the legislation respecting the property of married women with which it is of necessity involved. In Newfoundland and in the Province of Manitoba and the North-West Territories of Canada, and the Provinces of Alberta and Saskatchewan, it has been (rt) Stats. I. of Man, ii., 322. {p) See lii re Marslaud (1886), o5 (o) Law Mag. and Rev., 1905, p. 146. L. J. Ch. 581. 78 4 EFFECT OF MARRIAGE ON PROPERTY BRITISH DOMINIONS. abolished entirely. Land in Newfoundland descends by statute as chattels real (7), and upon the death of the owner it is distributed according to the Statutes of Distribution. In Manitoba it is declared by statute (r) that no husband shall be entitled to a tenancy by the curtesy in his wife's estate, but that in the case of a wife dying since July 1st, 1895, the husband is entitled to the same interest in the lands of his wife as a wife has in the estate of her deceased husband (one-third of her real and personal estate if she leaves issue, and if no issue the whole), and the Dominion Land Titles Act of 1894 (s), makes similar provisions for the North-West Territories in the case of a woman dying after January 1st, 1887. Ontario. — ^Sect. 5 of the Devolution of Estates Act (t), which applies to the estates of persons dying on or after the first day of July, 1886, provides that the real and personal propert}^ whether separate or otherwise, of a married woman in respect of which she dies intestate, shall be distributed as follows : one-third to her husband, if she leaves issue, and one-half if she leaves no issue, and subject thereto shall go and devolve as if her husband had predeceased her." In pursuance of this enactment the primary right of a husband is his distributive share in his wife's estate, which is his only interest in her property, unless he elects against the Act, as he may do by virtue of the Act itself ((O- That Act enacts that " any husband who, if ss. 3 to 9 of this Act had not passed, would be entitled to an interest as tenant by the curtesy in any real estate of his wife may elect to take such interest in the real and personal property of his deceased wife as he would have taken if the said sections of this Act had not been passed, in which case the husband's interest therein shall be ascertained in all respects as if such sections had not passed, and he shall be entitled to no further interest under the said sections of this Act." Although the husl)and's right of election depends upon a complete intestacy, that is, l)oth as to her real and personal property, on the part of his wife, it is still important, in such cases, to consider the effect of the Married Women's Property Act upon the estate of the husband at the connnon law. The sole reference to the curtesy in that statute (r) will l;e found hi the 5th section, sub-s. 3, which, (7) C. S. Nfd. (181)8), c. 77. (0 R- S. O. c. 127. (r) R. S. M. c. 45, s. 20. («) IhuL, s. 4, sub-s. 3. («) 57 Vict. c. 28, 8. 7. (f) R. S. 0. (1897), c. 1G3. CURTE8Y — NOVA SCOTIA. 735 after enacting that " the real estate of an}^ married woman married after the 2iid day of March, 1872, whether owned hy her at the time of her marriage or acquired in any manner during her coverture, shall be held and enjoyed by her for her separate use, free from any estate therein of her husband during his lifetime, and from his debts and obligations, and from any claim or estate by him, as tenant by the curtes}^" provides that " nothing herein contained shall prejudice the right of the husband as tenant by the curtesy in any real estate of the wife which she has not disposed of inter vivos or by will." There is no similar reservation in the remaining sections of the Act, which emancipate a married woman in Ontario, in respect of her property, as fully as the Imperial enactments on the subject. The state of the law in Ontario is ej^itomised by a recognised Canadian authority on the subject in the following words : — " The effect of the various decisions and Acts respecting the property of married women upon the estate by the curtesy may be shortly stated as follows : In all cases in which the husband would be entitled to his estate by the curtesy at common law, he will be entitled to it notwiti) standing any of the Acts relating to married women's property, and he is also entitled though the wife's estate is equitable, subject, however, to the right of the wife to dejDrive him of his estate in her separate proj^ertj^ whether legal or equitable, either by instrument inter vivos or by will"(.r). In the great majority of cases, accordingly, the j)roperty of a married woman in Ontario can be effectually disposed of by her in her lifetime or by her will, without her husband's concurrence ; and such disposition will deprive him of his interest. Nova Scotia. — As there is no reservation of the tenanc}- by the curtesy in the analogous legislation of Nova Scotia and Prince Edward Island an effectual conveyance by a married woman of her separate real estate would presumably bar the right of her husband ; but for such conveyance in both of those Provinces, the concurrence of the husband (either by joining in it or by separate instrument), is still necessary. When a married woman dies intestate in Nova Scotia, leaving issue the husband is entitled to his tenancy by the curtesy in her («) Armour on Titles, 3rd ed., p. 207. 736 EFFECT OF ^lARRlAGE ON PROPEflTV BRITI8H DOMINIONS. remaining realty and in addition to one-third of her personal property ; if she dies without issue, the hushand receives one-half of her personal proj^erty and in certain cases the ^Yhole (?/). The Wills Act of this Province still provides (z), that no will of a married woman under which the husband takes a greater interest than he would otherwise receive upon her intestacy shall be valid, unless executed when he is not present with a declaration that it is her free act. Prince Edward Island. — In Prince Edward Island the separate personal property of a wife dying intestate is distributed in the same proportion between her husband and children as the personal property of a husband dying intestate is distributed between his wife and children (one-third to the husband) and, if no child or children, as if the Act had not been passed (^0- Subject to the Married Women's Property Act, the husband has his tenancy by the curtesy in addition. New Brunswick. — The Married Women's Property Act of New Brunswick (h) expressly reserves the husband's right to his curtesy in the following words : — " Nothing contained in this chapter shall prejudice the husband's tenancy or right to tenancy by the curtesy in any real estate of his wife " (c). The effect of this clause has been recently considered in an instructive judgment, which was affirmed by the Supreme Court of the Province (d), in which the con- clusion is reached that the clause prevents the separate conveyance of the wife having the effect of depriving the husband of his curtesj\ Notwithstanding the conveyance, therefore, by a married woman of her separate real estate, the husband, should he survive her, is at her death entitled to his rights according to the common law, at all events as to women married before the Act came into force, viz., on January 1st, 1890. It is intimated in the course of the judgment that the effect of the clause may "possibly be more restricted as regards the husband's right " upon the property of a woman married since the Act came into operation. Acknowledg- ments by married women are required for the i)urposes of the Piegistry Act (e) and provision is made for the husband's interest in (y) See R. S. N. S., c. 140, ss. 7, 16. {<■) S. 4, sub-s. 4. (2) C. 139, s. 1.^. {d) Be Bury v. De Bury (190.S), ;i(J (a) 3 Edw. VII. c. 9, s. 21.1 N. B. R. 57. ' {!>) R. S. N. B. (1903), c. 78. (e) E. 8. N. B., c. 151, s. GO. CANADA DOWER. 737 the separate personal property of his wife in the event of her intestacy (,/') . British CohimMa (r/). — While tenancy by the curtesy still exists, a married woman can defeat the right by her dealing with her separate realty as a feme sole, as in Ontario. No conveyance by a married woman of real property acquired by her under any will or deed shall be deemed invalid or ineffectual (whether made before or after the Act) because made without the consent or concurrence of her husband (Ji). Her separate personal property is distributed as between her husband and children as the personal property of a husband is distributed between his wife and children, and, if no child, as if the Act had not been passed (?"), viz., under the Statutes of Distribution. Dower. — Generally. — The common law right of a widow to her dower in the lands of her husband still exists in the Provinces of Ontario, Nova Scotia, New Brunswick and Prince Edward Island. In all these Provinces, moreover, the i:)rovisions of ss. 2 and 3 of the Imperial statute 3 & 4 Will. IV. c. 105, conferring the further right to dower out of equitable estates, to which the husband dies beneficially entitled, and where the husband has been entitled to a right of entry, have been adopted by local enactments (k), but there is no dower in unimproved lands in a state of nature, or (in Ontario) in mining lands to which the husband does not die entitled. In Nova Scotia no dower is given out of unimproved land ; allowance is to be made therefor in setting off' the dower to her in improved land. But the provision that the widow is not entitled to dower out of unimproved land does not preclude her right to have woodland assigned to her from which she may take firewood necessary for her own use and timber for fencing the other portions of land assigned to her of the same lot, tract or parcel. In British Columbia the husband has the right to dispose during his lifetime or by his will of any real estate he may own, without the consent or concurrence of his wife, but if he dies intestate and without having disposed of his real property she is entitled to her (/) E. S. N. B., c. 161, s. ;3. and (1909), Ont., c. 39; E. S. N. S. ((/) E. S. B. C.,c. 97, s. 22. (1900), c. 114, ss. 2, 3 ; E. S. N. B. (h) Ihicl, c. 130, s. 22. (1903), c. 77, ss. 1,2; P. E. I., 62 Vict. {i) Ihid., s. 21. c. 13, ss. 1, 2. {h) E. S. 0. (1897), c. 164, sp. 2, 3 ; M.L. 47 738 EFFECT OF MARRIAGE ON PROPERTY — BRITISH DOMINIONS. dower. The Dower Act of this Province (/) is practically a transcript of the Imperial statute (???). There is no right to dower in the Province of Manitoba, in the North-West Territories, Alberta, Saskatchewan, or in Newfoundland. In the last-named colony all land, tenements and other heredita- ments, are by statute to be ** chattels real," and go to the executor or administrator as other personal property, and there is no pro- vision with respect to dower (n). The Dominion Land Titles Act of 1894 (o) enacts that no widow, whose husband died on or after January 1st, 1897, shall be entitled to dower in the land of her deceased husband, but she shall have the same right in such land as if it were personal property. A similar enactment in the case of a husband dying on or after July 1st, 1885, is contained in the Revised Statutes of Manitoba (1902), c. 48, s. 19 (p). Dower in Mortgaged Property. — Ontario. — Nova Scotia. — In Ontario, owing to a decision that a wife was entitled to dower in an equity of redemption in those cases alone where the husband had died beneficially entitled to the grant (5), a statute of that Province was passed in 1879 which enacted that no bar of dower contained in any mortgage or other instrument intended to have the effect of a mortgage or other security upon real estate should o^Derate to bar such dower to any greater extent than should be necessary to give full effect to the rights of the mortgagee or grantee under such instrument. This Act, which has been held to be confined to mort- gages made after March 11th, 1879 (r), is now part of the Dower Act (s). To settle the doubts and differences of judicial opinion that had arisen upon its proper construction {t) another statute was passed in 1895 (u) which added to the provisions of the earlier enactment that the amount to which the wife is entitled should be calculated on the basis of the amount realised from the sale of the land, and (/) E. S. B. C. (1897), c. 63. v. Maguire, 7 App. R. 704. (to) 3 & 4 Will. IV., c. 105. (r) Martiudale v. Clarksou, G App. («) C. S. Nfd. (1892), c. 77. E. 1. (0) 57 & 58 Vict. c. 28 (Cau.), s. G. (s) 1909, c. 39, s. 1. (p) The legislation of Ontario is {t) See Pratt v. Bunnell (1.S91), 21 discussed in Ai-mour on Titles, 3rd 0. E. 1 ; and Gemuiill r. Nelligan ed., pp. 195 et sxp ; Armour on Eeal (1895), 2G O. E. 307. Property, pp. 118 et seq. (») Now part of Dower Act, 1909, ((/) Black V. Fountain, 23 Gr. 174; In c. 39. See s. 1, sub-s. S ; s. 10, sub-s. 8. re Robertson, 25 Gr. 276, 486 ; Beavis CANADA — BARRING OF DOWER. 739 not upon the amount realised from the sale over and above the amount of the mortgage only. This enactment does not apply to a mortgage for unpaid purchase-money (.r). These enactments have been adopted in Nova Scotia (//). Barring of Dower. — Ontario. — Nova Scotia. — Prince Edward Island. — In Ontario, Nova Scotia and Prince Edward Island provision is made by statute for the conveyance of lands without the concurrence of the wife, and, in some cases, free from her dower, where she is of unsound mind or confined in a lunatic asylum, or has been living apart from her husband under such circumstances as would disentitle her to alimony, or otherwise as specified in the several enactments (z). It is no longer necessary, in Ontario, that a bar of dower should be attended with any special procedure (a). In Nova Scotia "every deed made by a married woman of any real property to which she is entitled, or in which she has any interest, either present or future, either in her own right or by way of dower, or otherwise, shall be as valid and efiectual as if made by an unmarried woman, if (a) the husband of such married woman joins in the deed, or by a separate instrument expresses his concurrence therein, and (b) the married woman acknowledges that the deed is her free act and deed, and that the same was executed freely and voluntarily without fear, threat, or compulsion of, from or by her husband" (h); and the acknowledg- ment must be certified by the person before whom it is made (c). The j)ersons before whom the acknowledgment may be made are set out in the 4th section of the Act (d). By the Dower Procedure Act (f ), the procedure in actions for assignment of dower without action is dealt with. Prince Edward Island. — An acknowledgment and certificate are also required to bar dower in Prince Edward Island by the com- bined eftect of the Acts 24 Vict. c. 18 and 34 Vict. c. 33. New Brunswick. — By the Registry Act an instrument shall not be registered if executed by a married woman alone, or if executed by her with any other person shall not be deemed to be registered as against her or any person claiming by, through, or under her, (cc) See note ((')• 20; and E. S. 0. (1897), c. 165, ss. (?/) E. S. N. S., c. 114, ss. G, 7. 3, 5, 6. (z) (1909), Ont. c. 39, ss. 13—18; {b) E. S. N. S., c. 113, s. 3. E. S. N. S., c. 113, ss. 8, 9 ; P. E. I., (c) Ibid., s. 4. 62 Vict. c. 13, ss. 3—7. {d) Ibid., infra, p. 744. (a) See (1909), Out., c. 39, ss. 19, \e) E. S. N. S., c. 169. 47—? 740 EFFECT OF MARRIAGE OX PROPERTY — BRITISH DOMINIONS. unless the execution of such instrument is acknowledged by such married woman before some one of the persons authorised to take acknowledgments by the Act, who shall certif^^as therein provided (/). Election. — Nova Scotia. — Ontario. — Although it is expressly pro- vided that nothing in the Act relating to the descent of real or personal property in Nova Scotia shall affect the right of a widow as tenant in dower (g), the third section enacts that if an intestate " leaves no issue, one-half of his real property shall go to his father, and the other half to his widow in heu of dower." And by statute of that Province, if a testator manifests an intention to dispose of his real property inconsistent with his wife's right to dower, the widow shall be obliged to elect between the provisions made for her by the will and her dower (Ji). Ontario. — The right to dower is expressly preserved by the Devolution of Estates Act in Ontario (0, but it is provided that "A widow may, by deed or instrument in writing, attested by at least one witness, elect to take her interest under this section in her husband's undisposed-of real estate in lieu of all claims to dower in respect of real estate of which her husband was at any time seised, or to which at the time of his death he was beneficially entitled ; and unless she so elects she shall not be entitled to share under this section in the undisposed-of real estate aforesaid." The effect of such an election is to give her one-third absolutely in the undis- posed-of realty of her husband which is distributed by the statute as personal property. Separate Property of Married Women. — Provinces — Generally. — An examination of the course of provincial legislation in Canada will show that the English Provinces have consistently endeavoured to follow Imperial legislation and to assimilate the local law regard- ing the property of married women to that of England. The provisions of the Imperial Married Women's Property Act of 1882 (A) have now been very generally re-enacted, and usually in the identical language in all these Provinces, and with a few exceptions, the Imperial statutory amendment of 1893 [I) has also been adopted in all of them. (/) R. S. N. ]}., c. 1.51, s. GO. sub-s. 2. (). The j)rovisions of the Imperial Conveyancing Act, 1881 (q), are adopted by the 9th section, which empowers the Court, where it appears to be for her benefit, to bind her interest in any propert}-, with her consent, notwithstanding restraint on anticipation. The 2*2nd section of the Act provides that any married woman having a decree for alimony against her husband, or who lives apart from him for cruelty or other just cause, or whose husband is a lunatic or undergoing sentence of imprisonment, or from habitual drunkenness, profligacy or other cause neglects or refuses to provide for her support and that of his family, or whose husband has never been in this Province, or who is deserted or abandoned by her husband, may obtain an order of protection entitling her, notwith- standing her coverture, to have and enjoy all the earnings of her minor children free from the debts and obligations of her husband and from his control and without his consent in as full and ample a manner as if she continued sole and unmarried upon the conditions therein specified. A similar enactment is to be found in the legis- lation of Xova Scotia, New Brunswick, Prince Edward Island, British Columbia, ^lanitoba and the North- West Territories. The remainder of the Act follows the Imperial precedent (r). Manitoba. — The law of Manitoba has been consolidated and amended and brought into general conformity with the law of Ontario by chapter lOG of the Eevised Statutes of Manitoba, 1902. (o) See p. 713. [1900] 2 Ch. 585, that a Imsbaud is Ip) E. S. O. (1H97), c. 1G;3, s. 7. still liable for the tort of his wife if the (7) 44 it 45 Vict. c. 41, s. 39. marriage took place before July 1st, (r) It has receutlj' been held in 1SS4 : Traviss r. Hales (1903), GO. L.E. Ontario, following Earle v. Kingscote, 574. MARRIED WOMEN S PROPERTY — CANADA. 743 This Act is free from any distinction as to the time when tlie marriage took place and aj)plies to all women whenever married and to all their property whenever acquired without distinction (s). Sects. 12 and 13 are respectively taken from ss. 1 and 2 of the Imperial Act of 1893 (0- Sect. 19 provides that a married woman shall be subject to liability for the maintenance of her children with a saving of all liability imposed by law upon the husband. The 20th section follows the Ontario statute as to a protection order for the earnings of minor children. Nova Scotia. — The Consolidated Act of Nova Scotia (ii) is of the same general character and adopts the Imperial legislation (r). Sect. 17 provides that any money, or other property, of a married woman, lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in the case of his executing an assignment for the benefit of creditors, under reservation of the wife's claim to a dividend as a creditor, but not until all claims of other creditors for valuable consideration have been satisfied. Any estate or interest acquired by a husband in his wife's real property by virtue of his marriage is not during her life or the life of her children to be subject to his debts {x). Sect. 18 is peculiar to this Province. Under that section when a married woman carries on, or proposes to carry on business as a trader separately from her husband, she is compelled to file a pre- scribed certificate in the Eegistry of Deeds for the local registration district, and, in default, any property employed by her in such business may be taken in execution as the property of her husband, and her husband shall be liable in respect of all debts incurred and contracts made in the carrying on of the business as if incurred or made by himself. There is the usual provision for the protection of earnings {y). In this Province every deed made by a married woman of any real property to which she is entitled, or in which she has any interest, either present or future, either in her own right or by way of dower or otherwise, shall be as valid and effectual as if made by an unmarried woman, (a) if the husband of such married woman (s) E. S. M., c. 106, s. 2. (v) Acts of 1882 and 1893. (0 See pp. 707-709. (») E. S. N. S. (1900), c. 112, s. 30. («) E. S. N. S. (1900), c. 112. y) Ihid., ss. 31—41. 744 EFFECT OF MARRIAGE OX PROPERTY — BRITISH DOMINIONS. joins in the deed, or in a separate instrument expresses his concur- rence therein, and (b) if the married woman acknowledges that the deed is her free act and deed, and that the same was executed freely and voluntarily without fear, threat or compulsion of, from or by her husband (z). If such acknowledgment is made within the Province it may be made before a Judge of the Supreme Court, or a County Court, a justice of the peace, a notary public, or a barrister of the Supreme Court. If made without the Province, before a commissioner appointed to take affidavits without the Province for use within the Province, a Judge of any Court of record, the maj^or of any city, a notary public, or an ambassador, minister, consul, vice-consul, or consular agent of His Majesty. The person before whom such acknowledgment is made shall certify the fact that it was so made upon such deed in writing under his hand (a). An amending statute of 1902 {b) provides that any married woman residing in the Province, or residing without the Province, and owning or having any interest in real or personal property situate within the Province, not living under a protection order, whose husband is confined in a penitentiary, or other prison, or has ceased to live with her without sufficient legal cause, or resides without the Province, or is a minor or insane or idiotic, or other- wise legally incapacitated from executing a deed, or whose husband's interests in her real estate have been sold under execution, or otherwise disposed of, may apply to a Judge for an order dispensing with the concurrence of such husband in any deed whatsoever of or relating to her real or personal estate. The Judge is thereby empowered to make an order either in the first instance, or upon notice, by which such married woman shall have i^ower to execute such conveyance as if unmarried. A certified copy of the order is to be registered with the conveyance. New Brunswick. — The New Brunswick statute is chapter 78 of the Revised Statutes of New Brunswick, 1903, which has been in force since January 1st, 1896. Sub-sect. 4 of s. 4, already mentioned, enacts that nothing contained in this chapter shall prejudice the husband's tenancy or right to tenancy by the curtesy in any real estate of the wife. In other respects the statute corresponds, in the main, to the statute law of England. An [z) R. S. N. S., c. 113, s. 3. (h) 2 Edw. VII. c. H. ((() Ihiil., 8. 4. MARRIED women's PROPERTY — AUSTRALIA. 745 acknowledgment is not necessary, as in Nova Scotia, but by s. GO of the Registry Act, for the purposes of that Act and the registry law of the Province, the deed of a married woman must be acknowledged by her in the manner therein prescribed. Prince Edward Island. — Recent legislation (c) in Prince Edward Island repeals an earlier Act of 1896 ((7) and brings the legislation of this Province into general accord with that of the other English Provinces, except that the Imperial Act. of 1893 has not been adopted there. The present statute appears to apply, indifferently, to women married before, as well as to those married after, its date. The deed of a married woman must still be acknowledged as her free and voluntary act in this Province as prescribed by 24 Vict. <;. 18 and amending Acts. British Columbia. — The British Columbia statute (c) repeals the earlier enactments of this Province as from April 7th, 1887. The statute follows the Imperial model closely and contains the usual protection order clause. Newfoundland. — The Imperial statute of 1882 is adopted in Newfoundland by the Act of 1883, which came into force on April 21st, 1883 (/). A later statute (g) re-enacts ss. 1 and 2 of the Imperial Act of 1893 and repeals the inconsistent provision of the consolidated statute. In Saskatchewan (//), Alberta, Yukon Territory, and North West Territories the provisions of the Imj^erial statute are adopted (0- Australia. — Married Women's Property, — New South Wales. — Act 11 of 1893 assimilates the statute law of the colony to that of England, and x\ct 4 of 1906 provides that no widow shall be entitled, nor after the commencement of the Probate Act, 1890, shall any widow be deemed to have been entitled to dower out of any land or out of any estate or interest therein. Queensland. — Act 54 Vict. No. 9 (1890) closely follows the Imperial Married Women's Property Act, 1892, and 61 Vict. c. 2 (1897) is practically a re-enactment of the Imperial Married Women's Property Act, 1893. (c) 3 Edw. VII. c. 9. (A) No. IS of 1907. {(I) 57 Vict. c. 5. {i) Yukon Act, chapter 63 of (f) E. S. B. C, c. 130. Eevised Statutes of Canada (1906), (/) C.S. Nfd., 2nd series, 1892. ss. 30—35; North West Territories {(/) 59 Vict. c. 17. Act, ibid., chapter 62, ss. 26—31. 746 EFFECT OF MARRIAGE ON PROPERTY — BRITISH DOMINIONS. South Australia.— Acts 300 of 1883-84 and 701 of 1898 introduce the Imperial Married Women's Property Acts, 1882 and 1893. Act 796 of 1902 provides that a married woman and her property shall be subject to all such proceedings and other remedies upon an}^ judgment against her in any Court of justice as might be had or taken upon a judgment against her if she were unmarried^ except that execution shall not issue against her property which is subject to a restraint on anticipation. Tasmania. — Acts 47 Yict. No. 18 and 64 Yict. Xo. 7 introduce the Imperial statute law. Victoria.— Acts 1116 of 1890 and 1416 of 1896 adapt the Imperial Acts of 1882 and 1893 to the Colony. Western Australia.— Acts 20 of 1892 and 22 of 1895 introduce the Imperial Acts of 1882 and 1893. New Zealand. — Acts 10 of 1884 and 16 of 1894 introduce the Imperial legislation. Fiji. — Ordinance 5 of 1891 adapts to the Colony the Imperial Act of 1882. West Indies. — In the first edition of Surge's Commentaries (j) attention is drawn to the mutual rights enjoyed by husband and wife with regard to property in slaves, which, although now having only a liistorical interest, may, as presenting an analogy for the present purpose, be reproduced here. Slaves were formerly Property sul)ject to Dower. — Until the aboli- tion of slavery by the Acts of the British Parliament and colonial Legislatures, there existed in the West India colonies a species of property which Great Britain had herself created and for more than two centuries encouraged. After that property ceased to exist, the money allotted by the British nation to the owners of slaves as a composition for the price of that property was subject to the same laws by which the property itself was governed. In .Jamaica slaves were for many purposes real property. They descended, and must have been transferred either by act inter vivos, or by devise, in the same manner and with the same formalities, as lands. The estate in them was subject to the same principles of law and the same rules of construction, as regulated the creation and tenure of an estate in lands. The husband could not alienate the wife's slaves. Her alienation of them must be with those (y) Burgo, vol. i., 563 -o05. SLAVES SUBJECTS OF DOWER — WEST INDIES. 747 formalities which were required in the conveyance of her land. The husband would take an interest in them as tenant by the curtesy, subject to the same rules by which he would acquire that estate in her land (k). They would descend on her heir. The wife had a much more restricted interest in her husband's slaves than in his lands (/). She was dowable only of those slaves whereof he died seised. Her concurrence in his alienation of them was not necessary, and, consequently, he might defeat her title to dower. Even if he had not alienated them in his lifetime, yet her title to dower would be defeated, if his assets, including his slaves, were not more than sufficient for the payment of his debts. In other colonies, although slaves were assets for the payment of debts, yet they were subject to many of the incidents of real pro- perty, which cannot be treated of here ; but in none of the colonies, except Jamaica, did the law recognise the title of the husband to an estate by the curtesy in his wife's slaves. In Barbadoes, Antigua, St. Vincent, Grenada, and Tobago, negroes were assets for the payment of debts, whether they were attached or unattached to the plantation, but those of whom the husband died seised were subject to the dower of the wife after the payment of debts (;»). In St. Kitts, Montserrat, and the Virgin Islands («), those only were subject to dower who had been commonly employed in or upon the plantation. In Nevis, Dominica, the Bahamas, and Bermuda they were not subject to dower (o). For the purpose of giving to the wife the full benefit of her title to dower, the cattle and plantation utensils belonging to a plantation whereof the husband died seised are in some colonies subject to the widow's dower. Thus in x\ntigua, St. Kitts, and Montserrat, " all coppers, stills, cattle, horses and asses ; " and in Grenada and Tobago (j>) "horned cattle, horses, mules, and asses, commonly (;.) 36 Geo. III. c. 10, s. ;31, Jam. 1, 2. Law. i'l) Leeward Island Act, No. '41. (/) 8 Will. III. c. 2, ss. 40, 42. (o) Nevis Act, No. IS ; Conn. Eep. (???) Bnrge, 1st ed., i., oG-± ; Meynell App. 143. u. Moore, 4 Bro. Pari. Ca. 103; Antigua (7*) Leeward Island Act, No. 31, Act, No. 83, cl. 10; St. Vincent's Act, cl. 3; Grenada Act, No. 12; Tobago July nth, 1767, cl. 1 ; Grenada Act, Acts, 8 Geo. III., 2 Geo. IV. No. 9, cl. 3 ; Tobago, 8 Geo. III. els. 748 EFFECT OF MARRIAGE ON PROPERTY BRITISH DOMINIONS. used or exercised upon or about any plantation, and all other planta- tion utensils, are inheritance and affixed to the freehold and are with the plantation descendible to the heir-at-law, and the widow is dow- able, as well of them and every of them, as of the lands and tenements whereof her husband died seised, and she is entitled to recover the mesne profits of such plantation. She may recover mesne profits for the negroes, cattle, horses, asses, or other hereditaments whereof she shall be so endowed, against the party or parties who have received or detained the same, in damages by action at law or suit inequity." Present Law (;?>/'). — In these colonies the law by which the rights and interests of the husband and wife in the property of each other are now governed has, for the most part, followed the course of recent legislation in England on the subject. Thus in Barbados (q), Grenada (r), Jamaica (s), the Leeward Islands {t), (comprising Antigua, Dominica, Montserrat, Nevis, St. Christopher, and Virgin Islands), and St. Vincent (u), the English Dower Act of 1833 has been adopted. In the Bahamas the old law of dower is still subsisting, subject, however, to certain modifications by recent legislation. By the Dower Act, 1873 (x), provision is made for the renunciation of dower by married women (//), and it is provided that where a judgment debtor has acquired real property otherwise than by descent or devise within twelve calendar months next before the day when judgment is entered up against him, or where such property has been acquired by him otherwise than as aforesaid and he has expended thereon within the twelve months i'SOO in erecting buildings or otherwise improving the estate, then in either of such cases the real estate may be levied on and sold under the judgment free from all claims to dower. By the Dower Act, 1903 (z), of the same Colony, the Court in any action for dower may issue a ( 2>p) This account of the law of the of sale such sum as the Court may West Indies and Trinidad has been direct is to be set aside for the wife in contributed b}' Mr. J. S. Henderson, lieu of dower, barrister-at-law. (0 Act No. 13 of 1nT2. ((?) Dower Act, 1878 (No. 4 of 1878). («) Dower Act, 1850 (No. 82); (r) Act of February 2nd, 18-12. Dower Act, 1879 (No. 20). (s) TiRW No. 33 of 1881, amended by (;v) 36 Vict. c. 9, amended in certain Law No. 24 of 1892, which provides particulars by 5G Vict. c. 15 and 61 that the land of a debtor married Vict. c. 7. before the passin<^ of the Act of 1881 (/y) S. 7. may be ordered to be sold freed from (2) 3 Edw. \'1I. c. 6. all claim to dower, but of the proceeds IMPERIAL ACTS ADOPTED IN WEST INDIES. 749 commission for the apportionment of dower, or may order a money compensation to be paid in lieu of an assignment of dower. A pro- vision similar to this also prevails in Bermuda (a). In the Turks' and Caicos Islands (/>) all renunciations of dower of married women must be recorded, and there is a provision as to the non-liability to dower of the real estate of a judgment debtor identical with that obtaining in the Bahamas as mentioned above. The Imperial Married Women's Property Acts, 1882 and 1893, have been adopted in their entirety in the various colonies above referred to ; in most cases both statutes have been followed, while in one or two of the colonies only the Act of 1882 has been reproduced. Both Acts have been adopted in Bahamas (c), Barbados (c?), Bermuda (e), Grenada (/), Jamaica(r/); and the Act of 1882 has been adopted in the Leeward Islands (h) and the Turks' and Caicos Islands (/). In St. Vincent provision has been made for the pro- tection of the earnings and other property of married women who have been deserted by their husbands (/.•), and the Imperial Married Women's Property Acts have recently been adapted to the colony by Ordinance 15 of 1906. As in England, the right of curtesy of the husband continues. Trinidad. — Till well on into the nineteenth century Spanish law,, which was in force in Trinidad when the island became a British possession, was retained in the colony with some few alterations made from time to time by Orders in Council. The differences between English law and that of Spain were very markedly reflected in the rights inter se of husbands and wives as to the property of each other ; hut now by a series of Ordinances the law of Trinidad as affecting the property of husband and wife has been for the most part assimilated to that prevaihng in England. By Ordinance No. 14 of 1844 it was enacted that as regards persons married thereafter, marriage should operate as an actual gift to the husband of all his wdfe's personal chattels, either beloug- (r/) Act No. 253 of 18G6. of their wives. (//) Ordinance No. 9, 18o'2, ss. 41, 48. (/) ActNo. 13of September 1st, 1896. (f) 47 Yict. c. 22 ; 58 Vict. c. 16. {). Thus the English and American law adopt the law of the matrimonial domicil (c) ; and so does the Swiss Federal Law as far as the property relations of the spouses to one another are concerned (d) ; and the opinions of the older jurists and the Institute follow the same line (e). In France and in Belgium the balance of the judicial decisions is in favour of allowing the Courts full liberty to fix the regime by reference to the intention, express or implied, of the parties, which must be ascertained from all the circumstances of the case, of which the matrimonial domicil is the most important {/). This applies equally to Frenchmen {b) Bar, pp. 417, 418. 24 ; Entscheidungen des Bundes- (c) Dicey, rule 175, 639; AVestlake, gerichts, xi., 121; Eevue, xiii., 103). (4tli), s. 36, p. 71; see post, p. 775; These rules are to remain iu force Dicey, 1st ed., American Notes, ch. after the Federal Civil Code comes xxvi., 657; Wharton, s. 191 ; Story, into force (see Final Title, art. 61). ss. 191 — 199. The matrimonial domicil (e) See Burge, vol. i., 1st ed., 601 et is the domicil of the husband, actual sec/. ; Bar, 407 ; and Weiss would or intended, at the time of the apply the personal law of the parties marriage: (7>/W., Lafleur, 163. if no contrary intention appears. {(l) See Swiss Federal Law of June Weiss would make intention of parties 25th, 1891, art. 19. The relations of the govern: iii. 553, 555. Institute, spouses to third parties are governed Lausanne, 1888, art. 14 ; Ann. x. 78. by the law of the matrimonial domicil (/) Baudry-Lacantinerie, iii., p. 11 ; for the time being. This rule applies Affaire Dages, Cass., 1836, 37, 1, 437 ; also to foreigners domiciled in Switzer- Affaire Fraix, Cass., 1857, Dalloz, land (art. 32), and was applied in the 57, 1, 104; Evans v. Enregistrement, Courts of Geneva before the passing of Cass. D., 1874, 1, 258 ; Hutchinson v. the law of 1891 (1880, J. 412; 1886, J. Enregistrement, Cass., 1885, 1886, J. 249, 251). If the first matrimonial p. 93 ; Gabay v. Sarfati, Cass., 1886, domicil of the spouses was outside 1886, J. p. 456 ; Favier v. Favier, Switzerland, their property relations Cass. S., 1893, 1, 457 ; Boiu'goise, are governed by the law of the State of Court of Appeal, Paris, S., 1896, 2, their nationality, except so far as 273 ; Anderson v. Anderson, Douai Swiss law applies (see Zeitschrift fiir (1899), 1899, J. p. 825. Schweizerisches Eecht, xiii., 324, xv.. 764 EFFECT OF MARRIAGE ON PROPERTY. marrying abroad and to foreigners marrying in France (g), who do not necessarily adopt the respective local laws. Wiiere the parties are of different nationalities, the law of the matrimonial domicil is often given priority over the law of the husband's nationality (//). The law of the matrimonial rkiiinc is to be kept distinct from that of the mutual succession of the spouses, which, as will be seen later, is governed by the law of the deceased's domicil or nationality at the time of his death (i). Many foreign Codes, however, adopt the national law for this purpose (/.•), and it is favoured by a strong body of modern opinion (/), Thus according to German law, if the husband is a German at the date of the marriage, wherever the matrimonial domicil may be situate, the matrimonial regime is determined by German law ; and if the husband at the date of the marriage is not of German nationality, the matrimonial regime is determined by the law of the country of which he was a subject or citizen at the date of his marriage, though the matrimonial domicil is in Germany {m) ; but in the latter case, if the national law adopts the principle of domicil and the domicil of the parties is German, then German law is ai)plied though the parties are not German subjects (//)• No express rule is laid down as to the matrimonial regime in a case in which the husband at the date of the marriage is not of German nationality and is not domiciled in Germany, but according to the universal opinion and the practice of the Courts, the law of the nationality is also applied in such a case. There is one modification of the national law wliich takes place in a case where the matrimonial domicil is in Germany ; it consists {(j) 1887, J. 3;U ; 1901, J. :}54, (/t) Codes of Italy, art. 6 ; 190;}, J. Frenchmen marr^'inji- abroad; 1898, 873, and 1904, J. 187; Spain, art. J. 9.35; 1899, J. 385; 1904, J. 185, 1325, which makes the national law of foreigners marrying in France. the husband, Spanish or foreign, pre- Frenchmen marrying in France are vail, but witliout prejudice to the law subject to art. 1393 of Code, but this governing real property; 1891, J. does not necessarily apply to them 1122; 1897, J. GIG; Portugal, art. marrying abroad : 18,S9, J. 845, C. A., 1107; Belgium, 187G, J. 182; 1881. Paris. J. 478. (//) AubryetRau. vol. v., s. 504 bis, (/) Berlin, 1891, J. 989; Leipzig, pp. 275, 276. ihiil. ; Roumania, 1900, J. 529, 530. (0 187G, J. 1.S7 ; Wcsth.kc, ss. 42— (m) Civil Code, s. 15. 82 ; Hernando r. Sawtoll (1884), 27 (//) Code Civil, s. 27. Ch. I). 284. GENERAL OBSERVATIONS. 765 in the non-recognition of immutable rnjimes {<>). While the German Courts ajjply the national law irrespectively of the domicil of the spouses, they do not recognise the immutability of any matrimonial rnjime {})). In many cases in which national law has to be applied the domicil has to be considered as well ; this limitation of the doctrine occurs wherever there is no uniform national law(^). But the fact that the domicil has in these cases to be considered does not,, of course, affect the general principle. With regard to real property, as will be seen, while the lex situs has been declared by the majority of opinions and jurisprudence to be decisive, recently the personal law or law of matrimonial domicil as described above has received strong support, which seems likely to increase even in systems like our own, which have been most positive in favour of the lex situs (?•). The local law must not, however, be infringed by giving effect to the tacit contract of the parties (s). Scope of Lex Situs and Personal Law. — A distinction requires to be made between rights of ownership and the contractual right to claim the ownership of marital property, which resembles the difference in English law between legal and equitable ownership. The lex situs controls the actual proprietary rights created over property real or personal, immovable or movable, but the proper law of the parties (personally) may create rights b}^ contract as (o) Therefore, if a Frenchman in the Grand Duchy of Baden, the marries without a marriage contract, law of the nationality was the pre- being then domiciled in Germany, the vailing law. spouses may, by post-nuptial marriage (7) Thus, for example, a French contract, modify the French statutory Court, in applying the national law of reyime {com mimaute lef/ale) though this a Prussian subject before 1900, could this be forbidden by French law. not leave the matrimonial domicil out (/*) In the former German law of consideration, because the statutory (before 1900) there were no express regime at Berlin was not the same as at rules similar to those governing the Konigsberg, and a different statutoiy present law, and there were opposing regime w^as again applied in Cologne, opinions of jurists. The prevailing &c., &c. On the other hand, Saxony opinion in those parts of Germany (since 18G2), as well as the Grand where the so-called German " common Duchy of Baden (since an earlier law" was applied favoured the /ex rfonii- period), had the same reg i me thxongh- cilii. In Saxony the same law was fol- out its territory, lowed; while in the parts of Germany (r) ^qq post, pp. 792, 793, and 795. where French law was applied, and (s) See post, p. 796 ; Story, s. 188^ 766 EFFECT OF MARRIAGE OX PROPERTY. regards the iDarticiilar property, which will he enforced against that property on the footing of contract, and a fortiori on that of matri- monial contracts, which were and are still regarded as universal assignments of property (0- Except in this sense and to this extent, the lex rei sitce, at least as regards personalty, has now but few supporters (h). Tl)e difference formerly recognised between immovable and movable property, and treated by Burge in the former edition as indubitable, is now disfavoured. Subject to what is said above as to the effect given in Continental countries to the law of the matrimonial domicil, it may be said that the whole marital regime on principle is governed by the proper persoiKil law, but that as regards tangible objects of property — whether movable or immovable — the acquisition of ownership in the strict sense depends on the lex situs, which may claim the right to regulate the property according to the legal regime of the country where it is situated, but without prejudice to the contractual or equitable rights created by the matrimonial regime. As regards rights to stocks and shares and to choses in action, the rules as to the acquisition of the legal interest are determined analogously by the law of the place where the register is kept or where the debtor is domiciled ; but that does not prevent the equitable interest from vesting in the manner required under the proper personal law. Effect of Lex Fori. — The ordinary rule of conflict is liable to be modified by the influence of the lex fori. This law may be that of the temporary residence, but it may also be the law of any Court which properly has jurisdiction over the persons or property con- cerned, e.g., the law of the domicil of a debtor, the situs of the property, ^:c. This is recognised in the German Civil Code (a;). Mutable and Immutable Regimes. — As already seen, in certain countries community of matrimonial property arises in the absence of a marriage contract, e.g., France. In others, community of goods may l)e adopted by such contract. Again, the regime may be immut- able, like tlie French regime ; or mutable, like the German regime. The question whether parties, married under an immutable regime, can, after establishing their domicil in a country where the regime is mutable, contract themselves out of the original regime is one of (0 Westlake, ch. iv., pp. OS et seq. 1902, J. 470, 480. (»<) Russian law apparently adopts (.x) Introd. Law, art. 30. ti'X situs for both realty and personalty : COMMUNITY — DOCTRINE OF TACIT CONTRACT. 767 great practical importance. In the only case (De Nicols r. Curlier) which has as yet come before the English Courts raising this question, the judgments appear to favour the inference that effect would be given to any change of contractual regime, but not of an immutable regime. As will be seen below, the view of the United States jurists favours giving effect to the actual personal law of the parties as decisive ; while the Continental jurisi)rudence upholds the original matrimonial property regime (//). From the change of view which has taken place on the whole subject, the quotations from mediaeval jurists made by Burge in the former edition are not now capable of being usefully combined with the opinions expressed on the actual law of the present day, and they are accordingly stated separately where retained, while the original plan of the chapter in his work is followed. In the former edition, Burge cited the following authors in dealing with this question :— (a) "Where the Marriage Regime is System of Community. — Older Jurists. — Amongst the various questions which have arisen in con- sequence of such a conflict, the subject of the greatest controversy has been the effect of the commvnio honorum on property situated in a country where the law established no such provision {z). Doctrine of Tacit Contract. — Dumoulin is placed at the head of that numerous body of jurists who maintain that the commimio honorum extends to property wherever it is situated. In a case arising out of the marriage of Monsieur de Gannay and Dame Jeanne Boyleaiie, on which he was consulted in 1525, he gave his opinion that, as they were domiciled and married under a coutume in which the community prevailed, the widow was entitled to one moiet}^ of the conquests in whatever place they were found, notwithstanding that the marriage contract did not contain any stipulation that they married under the community. He commences his reasoning in support of this opinion by laying down the undoubted proposition that a co-partnership once formed comprehends property wherever it was situated ; because every contract, whether it be tacit or express, " ligat personam et res disponentis ubique," &c., and that it affords no objection to the application of this principle to the community that " such a co-partnership is not express, but tacit, {y) 1902, J. 314. (z) Burge, 1st ed., i., 600; Eoden- burg, de Jure, c. 5, tit. 2, s. 12. 7G8 EFFECT OF MARRIAGE ON PROPERTY. and arises out of the tacit or presumed contract introduced by local custom " (a). He affirms that there exists this contract between the parties, and asserts that it is one, and indeed the principal cause which subjects tliem to the law of community, but that it is only a tacit contract. This doctrine, which Dumoulin supports by referring to Baldus and other authorities, is sanctioned by the decision of the Appellate Court in Belgium (several times approved by the Belgian Courts in modern times), and is approved by Christinaeus(6). liodenburg has adoi)ted it on similar grounds (c). Lambert Goris seems to be of opinion that the i3roperty, wherever it is situated, is affected by this tacit contract of the parties {d). A. Wesel has expressed a decided opinion in favour of this doctrine (e). •Hertius discusses the case in which the law of the matrimonial domicil is at variance with that of the locus rei siUe in adopting the community. If it exists in loco rci sitce, but not in the husband's domicil, he concludes in favour of the presumed agreement, that the law of the latter country should be adopted (/). The converse of the preceding case is next discussed by him, as v.hen the law of community prevails in the matrimonial domicil but not in loco rci aiUe. Having observed that those who main- tain that the lex loci rei sitce must prevail admit as an exception the case of an express contract excluding that law, he urges that exception in supporting the opposite opinion u/). He maintains the same opinion on the effect of the law of Liege, called le droit de main plenie, by virtue of which the husband, on his marriage, acquires the dominium in all his wife's property of every description. He considers that the property of the wife situated at Li6ge would not be subject to this law if the matrimonial domicil were in Utrecht {h). (a) UuuiQulin, Cone, 03. See Weiss, 219; L. Goris, de Soc. Conj., tr. 1, iii., 547. c. 6, p. 62. (6) Burge, Ist ed., i., 603; Bald. (/) Hertius. i., De Collis. Leg., s. 4, Cons., 208. See Eod. Suarez. De Bou. p. 143, s. 46. Acq., nil. 42, 43 ; Christ. Decis. torn. 2, {y) Hertius, ibitl., p. 144, s. 47. Decis. 57, p. oo. (h) Ilnd., s. 44. The citations from ('•) Rodciib., de Jure Stat. Divers, these authors, given in the tirst edition c. 5, tit. 2, s. 14. ofBur;4e, 601 — ()07, are not reproduced {if) De Soc. Conjug. , tr. 1 , c. 6, p. 62. in this passage. (e) A. Wesel, tr. 1, s. 115, pp. 42, REGIME OF COMMUNITY DOCTRINE OF TACIT CONTRACT. 769 Huber adopts this doctrine in its fullest extent (/). It appears to have been sanctioned by Grotius, in an opinion given by him, on the question whether the husband who, by marrying in Holland without an ante-nuptial contract, had by the law of the place acquired the full power of dis2)osition over his wife's property, could exercise this power over property in another State where the same law did not prevail. He was decidedly of opinion that his power extended over the foreign property, for, as the woman had married in a country where the law gave the husband this power, she must be understood to have tacitly contracted to this extent (/,). Miiller, after referring to the opposite opinions entertained on this question, adopts the doctrine of Dumoulin, that the community originates in the tacit agreement of the parties on their marriage, and that such agreement has the same effect as an express agree- ment in transferring projjerty wherever it may be situated (l). J. Yoet, in his treatise " De Familia Erciscunda," had inclined to the opinion that the community which prevailed in the matrimonial domicil did not extend to immovable property situated in another country (m). But in his commentary on the Pandects he recedes from it and adopts the doctrine of Dumoulin, His argument is founded on the presumed or tacit agreement of the parties to conform to the law of the matrimonial domicil. He considers that it is of equal efficacy with a similar express agreement and that it infers an exclusion of any other law (^0- It is supported by Stockman, who expresses his dissent from a decision which he reports at variance with it (o). To these authorities may be added Neostad(_2?), Schrassert ((/), and Van Leeuwen. Early French Decisions and Jurists. — The decisions in the Courts of France are founded on this doctrine (r). An Arret of April 8th, 1718, is an express recognition of it. In (i) Yol. ii., lib. 1, tit. 3, de Coufl. (o) Stockman's Decis., 50. leg., s. 9. (2O Obs.de Pact. ant. Nupt. Obs., 9. (A-) Hollandsclie Consultatien, b. 4, ((/) Obs., 2:53; Cens. For., lib. 4, c. p. 53. 23, ss. 5, 6. {!) Vol. ii., -p. 34. (r) Two of the earliest are reported {m) J.Voet, deFam. Ercis.,c.4,n. 19. by Gousset in his commentary on the (») J. Yoet, de Ritu Nupt.. lib. 23, contume of Chaumont ; liv. 15, nn. 13. tit. 2, n. 85. 14, 15; Bui'ge, 1st ed., i., GOG. M.L. 49 770 EFFECT OF MARRIAGE OX PROPERTY, 1655 a marriage took place between Francois A. and Charlotte H. Senlis was the place of their birth and tlieir matrimonial- domicil, and the communit}' of goods prevailed there. On the death of the wife her collateral heirs, in conformity with the commmiity, claimed a partition of the estate in whatever place it was situated, and particularly of property in Normandy. Their claim was resisted on the ground that there was no express contract that the community should exist. In reply to this objection they relied on the tacit or implied contract. It was held that there was no distinction between an exj^ress and an implied agreement, and that the operation of the law of community ought in both cases to be determined by the same j)rinciples ; and accordingly it was adjudged that the partition should take place (0- It was decided by a subsequent Arret that when the matrimonial domicil was in Normandy the wife could not claim the benefit of the community of Paris (»)• The greater number of the jurists of France have in tlieir commentaries on the several coutin)ies adopted this doctrine of the tacit contract (.r). It is supported by the authority of Pothier, according to whom the parties to a marriage, when they have not entered into an express contract with regard to the marital pro- perty refiiiiw, are deemed to have tacitly adopted the law of their domicil, which will extend to all the property which they may acquire during the marriage, even though such property is situated in a country the law of which does not admit the regime set up by the law of their domicil, unless it has been expressly agreed upon for tliat purpose (}i). Opposing Views.— Merlin is another zealous advocate of this doctrine (2'). But it has encountered able opponents. The principal of them, D'Argentr6, maintained that there is no such tacit agreement. The utmost effect which can be deduced from the circumstance of (t) 1 BouU. 7()7, 7()S. Notts by Berroyer uiul Lauriere ; Le (h) ^\aTet, July 27tb, 174.5; Arret, Maitre, Ferriere, Le Bruii ; Argou, May 7th, 1746. Hist, du Droit Franr.s., liv. ;5, c. 1, tit. (x) Burj;e, 1st ed., i., GC»7 ; Bouliier, de la Comin., j). 28. C'out. de Bourg., c. 2'-i, ss. 69, 74; (//) Pothier, Tr. de la Comin., Bacquot. tr. des Droits de Just., c. 21, art. prelim., torn. 6, nii. 10 — 12. nn. 66, 67 ; Auzanet on the 220 ai't. of (z) Merlin, Eep. tit. Comm. and tit. the Cout. Duplcss., tit. de la Comm. ; T>roits do Foodalite. OPPOSING VIEW TO DOCTRINE OF TACIT CONTRACT. 771 the parties having- man-ied without any express contract is their simple assent to submit to the law of the matrimonial domicil. Such an assent cannot give to the law an obligatory force which does not in fact belong to it, nor cause it to extend its power to another country. One of the objections to the doctrine of Dumoulin is that he assigns to this supposed tacit agreement a greater effect than would justly belong to an express agreement of a similar import, because, if an agreement had expressed that the parties submitted themselves to the law, they could only be understood to submit to it according to its known operation and effect, namely, that it did not extend to property situated in any country where such a law did not prevail. Nothing less than an express agree- ment that the community should extend to the future acquisitions uhicunqiie fuerint reperti would give the parties even a personal action to compel a transfer of such acquisitions. He expressed a decided opinion that the community, although it exists in the country of the matrimonial domicil, would not affect property situated in a country where such law does not exist {a). These conflicting doctrines were brought under the consideration of the Court at Brabant in 1698, and the opinion of D'Argentre was adopted. A person whose matrimonial domicil was in Brussels married a lady possessed of considerable real estate in Bergen- op- Zoom. The commnnio honorum existed in the latter place but not in Brussels. On her death without issue the husband claimed a moiety of her real pro^Derty in Bergen-op-Zoom. He was opposed by her heirs. The Court decided in favour of the husband. This decision was followed by the celebrated dissertation of Van der Meulen, in which he suj^iDorts it by reasoning similar to that which had been used by D'Argentre {h). This doctrine, that the law of community does not affect pro- perty situated in a country where the provision does not exist, obtained the concurrence of a numerous body of jurists (c). It should, however, be observed that the doctrine of Dumoulin is by himself and the French jurists applied to the community of (o) Argentr., art. 418, pp. 612 et seq. Covarruv., 199; VanclerKeessel, Thes., {h) Boiilleuois, Tr. des Stat., tit. 2, 28; Mattheeus Parcem. Belg., par. 2, c. 0, obs. 29, p. 761. im.eSeise/. ; Carondas. Greg. Lopez on ((■) Buvge, 1st ed., i., 612, citing the Partidas, torn. 2, p. 598 ; Garsias, Everard, Eesp., 213; Peck, de Test. de Acqupest., n. 146; Christ. Decis., Conj., lib. 4, c. 28; Chassimeus, 133, torn. 3. See 1 Frol. Mem., 223. 49 — 2 772 EFFECT OF MARRIAGE ON PROPERTY. property which the husband and wife might acquire stante matri- iHonio, the commmuo qiKeshmm ; and that on the other hand, the argument of Van der Meulen is addressed to the coiiiniunio onutiiim honorinn, and especially to that of property belonging to the wife at the time of the marriage. It may be, and indeed has been inferred, that Dumoulin would not have extended his doctrine to the community of property belonging to the husband and wife at the time of their marriage, and Van der Meulen has himself stated that his own opinion would have been different if the question discussed by him had involved the commnnio qucesininn (d). It is also to be remarked that Dumoulin acknowledges that his doctrine cannot be admitted, if there exists i)i loco rei slice a law which prohibits the community {e). A diiierent view of this question has been taken by other jurists : e.g., Burgundus, who, while otherwise agreeing with Dumoulin, thought tliat the community ought not to be extended to acquets made in another country (/) ; and Boullenois, who regarded the community as a law, constituting the status of the husband and wife, as conferred by the law of the matrimonial domicil, and aflecting jjroperty w'herever it was situated (//), and discarded the theory of a tacit agreement as thus unnecessary for the purpose of giving to this law of community its extraterritorial quality (//). Surge's Opinion. — The conclusion arrived at by Burge (i) was to the same effect, namely, that immovable property situate abroad is not affected by the law of community existing in the domicil or matri- monial domicil of the parties, for the following reasons: — Extraterritorial Effect of Law of Comnmnity. — Immovable Property. — 1st. The law, which by its own force and operation, and indepen- dently of contract, gives an interest in immovable property, is a territorial law. 2nd. Immovable property is not subject to the power of a territorial law, unless such law exists in the country where that property is situated. yrd. Tbe joint interest which the husband and wife acquire under {(I) ]5onll. 7(i(), T(j7 ; Mt'ilm, tit. (//) liouU. torn. 1, c. o, obs. 29, Coiiim., vol. v., 8. 1. p. 750. {e) Froland, torn. 1, p. 218. (A) Ihi'L, p. 73S. (/)Tr. ad Consuet. Fland. tr. 1, (/) 1st ed., i., 017. 11. 1j; Fiolmid, loiii. 1, i). liKi. WHETHER COMMUNITY EXTERPJTOKIAL BUROE's OPINION. 773 the community in the immovable property of each other is conferred by the law alone, unless that law be controlled in its operation by a tacit agreement ; such an interest, therefore, will not be acquired in immovable property situated in a country where the law of community does not exist. 4th. If a tacit agreement could be inferred for the purpose of giving to the law of community a more extensive operation than belongs to the quality of a real law, it might with equal pro- priety be inferred for a similar purpose in the case of other territorial laws, i.e., those which govern the succession to real property, &c., a preference of the law of the country in which a man has passed his life to that of another country, in which his real property may be situated, is as natural a presumption as that in favour of the law of the matrimonial domicil. 5th. It cannot be said that because the title is conferred by the law, as the consequence of the marriage, there is a ground peculiar to marriage for admitting the presumption of a tacit agreement, because no such presumption is admitted in respect of other titles conferred by law as the consequence of marriage, e.g., the titles to douaire and droit de riduite. 6th. The laws which confer douaire and droit de riduite are admitted by all jurists to be territorial laws, and consequently they attach on that property only which is situated in the country where they prevail, and they do not extend to that which is situated in another country, and no tacit agreement is presumed, in order to control their powers. 7th. The law establishing a community in immovable property is not essentially distinguished from the laws of douaire and riduite in any one of those particulars which determine the extent of their power. There does not, therefore, appear to be any substantial reason for allowing the law of community to have the effect of an exterritorial law, and to attach on immovable property, in whatever country it may be situated. If this reasoning be admitted, the community, when it prevails in the matrimonial domicil, will be confined to such immovable property as is situated either there or in a country in which a similar law exists, but it will not extend to such property situated in a country where a similar law does not exist (j). {J) Burge, 1st ed., i., 618, 619. 774 EFFECT OF MARRIAGE ON PROPERTY. Extraterritorial Effect of Law of Coninmnity. — Movable Property. — Surge's Opinion. — In the preceding observations the law of community has been considered only as it affected immovable l^roperty. Its effect on personal property is determined by other principles. According to a principle of international jurisprudence, the acquisition of movable or personal property by the operation of law is, as will be presently shown, governed by the law of its owner's domicil. The community, if it prevailed in the matrimonial domicil, would therefore attach on the movable property of the husband and wife, in whatever place it was situated (/,). This proposition is now subject to the qualification that it applies to such universal assignments as arise on marriage contracts and successions, and to the beneficial interests in such property as distinct from the legal ownership {I). Modern Decisions and Jurists. — Modern opinion seems to adopt the theory of tacit agreement and to treat as the governing law on this point the personal statute ; and though prohibitions against alienation of matrimonial proj^erty have been treated as ineffectual beyond their jurisdiction, this has been doubted (/»)• Savigny adopts this theory, but bases it upon the voluntary sub- mission of the parties to the law under which they marry. In his view this law applies to foreign immovable property (»), and Phillimore and Westlake agree with him(n). Bar rejects the idea of implied contract and prefers to treat the personal law as the basis of the matrimonial regime of the parties as regards property, as it is generally considered to be that of their personal mutual relations in marriage, regarding this as the historical foundation of the matter. He would make the application of the personal law to foreign real property depend on whether that law adopts the idea of an unity of marriage property similar to that of succession ; and to justify its application he would require that both the personal law and the lex rei siUe should hold that doctrine {}>). Weiss adopts the tacit agreement theory, the law intended by the parties (/•) Burge, Ut ed.. i., (Jli»; and sec {m) ISd'.i, J. Umi, T. C. Toulon. pp. 765, 76G. (") Savigny, s. Hid; Gutlivie, ])p. 29;j (J) Westlake, ch. vii., and pp. isi, —295. 182, 198; and Weiss, iv., pp. 191 ffsf'^.; (o) Phillimore, vol. iv., ;514, 310:. Alcock V. Smith, [1892] 1 Ch. 2.38; Westlako, 7;}— 75 ; 1881, J. :J15. EmbiricoH r. Anglo- Austrian Bank, (/') Bar. Gillespie, 405—112. [1901] 2 K. B. 870. WHETHER COMMUNITY EXTERRITORIAL — MODERN VIEW. / 7d governing and applying to all matrimonial property, without distinction between real and personal estate there or abroad (q). Continental Law. — In the Continental jurisprudence, as a general rule, a system of community or any other kind of matrimonial regime will extend to property of the spouses abroad unless the lex situs prohibits it, e.g., this view has been adopted by the Institute (a), and favoured by German and Italian writers (6). In France the prevailing judicial opinion seems to uphold the lex situs as govern- ing real property of foreigners in France (c), but the opinions of jurists would contine the supremacy of French law in this matter only to a controlling function and not a directly governing power (d). Law of Quebec. — In Canada (Quebec) the Courts have held that community established by the law of the matrimonial domicil will apply to property real or personal abroad (e). English Law. — In England until lately there was no definite decision on this point, but there were judicial dicta which seemed to negative the theory of the tacit contract (extending even to personalty abroad), and make the matrimonial ?•%?;»(.' of the spouses depend on the law of the actual domicil at the time of the dissolu- tion of the marriage (/). It has, however, lately (1900) been held by the House of Lords that the French system of community of goods imposed by the law of the matrimonial domicil upon the parties in the absence of express contract applies to personalty in England as an implied contract (_(/), and the High Court has held that the reasoning of that decision applies the same system of law to real property in England, and creates a personal obli- gation in respect of it, if that is not inconsistent with English {q) Weiss, iii., 551. p. 794. (a) Institute, Lausanne, 1888, s. 12 ; (e) Lafleuv, 165, 16(3, citing Lan- Ann., X., 77. guedoc r. Laviolette (1848), 8 L. C. E. (i) Bar, Gillespie, 401 •zot. (c) Weiss, iii., 557, 155—158; Code (/) Foubert i\ Turst (1703), 1 Bro. Civil, art. 3, s. 2. AYeiss thinks this does P. C. 129 ; Burge, 1st ed., i., 615, 619 ; notapph'to the rule in art. 1554 of Hall v. Hall (1854), 16 D. 1057; the Code against alienation of '/o^, 558. Duncan v. Canuan (1854), 18 Beav. {(J) Weiss would apply the criterion 128 ; (1855), 7 J). M. & G. 78 ; of intention to govern real as well as Guepratte r. Young (1851), 4 D. G. & personal property, but admits that Sm. 217- French, jurisprudence distinguishes (9) De Nicols t'. Curlier, [1900] A. C. between them : iii., 555, 556; see j'f.sf, 21. 776 EFFECT OF MARRL^GE ON PROPERTY. law {h). AVhether the same rule would hold good of any other system of community would seem to depend on whether the law establishing it makes it a tacit contract between the parties {i). Law of United States. — Out of the variances in the statutory law of the American States upon the subject of the matrimonial regime of property, a group of rules have been developed for the solution of conflicts, which have been followed Vtith. considerable uniformit3^ This may be ascribed perhaps, to the careful reasoning of Story in his first edition of his work upon the Conflict of Laws, wherein he deduces the rule that the matrimonial domicil should govern the respective rights of the spouses in personal property, because that place is the seat of the performance of the contract of marriage (A). This reasoning was adopted in most jurisdictions, though difl'erent tests have since been set up for determining the matrimonial domicil ; thus the view of Story, that the place of celebration will govern in the absence of proof of a contrary intention has been abandoned. A recent American writer objects to the term " matri- monial domicil " and cites an English case in support of his contention [1), but it is submitted that the same result is reached provided the term be interpreted simply as a substitute for the place of celebration of the marriage, and this is in fact the interpretation given to it by the preponderance of American authority (//()• The law of the matrimonial domicil is held not applicable to foreign immovables nor to real property when converted into money. The rights of the spouses in immovables are determined by the lex sit us {u) ; (A) DeNicols ?'. Curlier, [1900] 2 Ch. Kingdom or in a foreign countrj^ does 417, Kekewich, J. not operate as an assignment of real (i) Burge, 1st ed., i., p. Glo, pointed property in England: Dicey, rule 68, out as an argument against the com- p. 329, and rules 109, 110, 2>p. 429, 430. munity extending to lands abroad by (A-) Ss. 191 — 199. mereoperationof law that bankruptcy, (/) Minor, 1901, pp. 177 — 178, citing though operating as an assignment Le Mesurier v. Le Mesurier, [1895] of the personal property wherever A. C. 517. situated, will not have a similar effect (m) Davenport v. Karnes (187G), 70 on his real proj^erty. This analogy no 111. 465; Glenn v. Glenn (1873), 47 longer holds good absolutely ; under Ala. 204 ; CraycrofE v. Morehead the modern statutes an English bank- (1873), 67 N. C. 422. " This place of niptcy is equivalent to an assignment performance is the matrimonial domi- to the debtor's trustee of real property cil to which luisband and wife jointly here or abroad, and Scottish and Irish propose to repair " : Wliarton, 1905, bankruptcies havo the same effect; p. 408. but a ]);iiikrup(cy outside the United (it) Besse /'. Pollochoux (1877), 73 CHANGE OF DOMICIL OR PERSONAL LAW. 777 but a distinction must be observed even here, because the lex situs itself may prescribe a different rule when the parties are domiciled outside of the State than when they are domiciled within the State. The character impressed upon personal property by the law of the domicil at the time it was acquired may attach to real property purchased with the proceeds, though the real property would other- wise be dealt with according to the lex situs. And so it has been held that real property purchased in a State recognising community will still be considered separate if purchased with funds acquired in a State where separation of property prevails, thus applying the equitable theory of conversion to the marriage re'gimc (o). In Louisiana the legislature has made the system of community prevailing there applicable to all property acquired within the State. Accordingly, as to that property, even though personal, the lex sitce applies without regard to the location of the matrimonial domicil (}>). In the discussion of one of the cases, the doctrine of Dumoulin received a most learned and elaborate investigation ; his theory of a tacit agreement was condemned, and it was considered that the law of community has not an exterritorial effect {q). This has received the approval of Story (r). (b) Change of Domicil or Personal Law. — Older Jurists. — In the former edition Burge next discussed the effect of a change of domicil or personal law on matrimonial property (s). If the parties retain their matrimonial domicil or nationality, the only laws between which a conflict could arise would be those of that domicil or nationality and of the situs of the property. But when they change their matrimonial domicil, and acquire another domicil in a country where no such law as that of their former domicil prevails, the conflict will take place between the law of that domicil and the law of the new or actual domicil. Thus, if 111. 285; Saiil r. His Creditors, 5 Holden (1860), 25 A. C. ol7 ; Le Breton Mart. N. S. Louis. 569 ; Wharton , s. 1 9 1 . v. Noucliet ( 1 81 3), 3 Mart. 60. (o) Bletheu v. Bonner (1902), 30 (q) Saul v. His Creditors (1827), 5 Tex. Civ. App, 585; 71 S. W. 290; Martin's Eep. N. S. 569 ; Gale i-. Davis accord. Elliott v. Hawley (1904), (1817), 4 Martin's Eep. 645 ; Story, 76 Pac. 93 (Wash.); Castleman v. C. L., 183, 180, 187. Jefferies, 60 Ahi. 380 ; Wharton, s. (r) The passage in the older edition, 191. pp. 617—619, is cited in Story, s. 170 (2j) La. Civil Code, art. 2400 ; Pack- (1872 edition). wood£(1845), 9 E. 438 ; * McVey v. {s) Burge, 1st ed., i., 619. 778 EFFECT OF MARRIAGE OX PROPERTY. the law of community prevail in the matrimonial domicil, but not in the new or actual domicil, it will become a question whether the property acquired before or after the removal will be subject to it. According to the general doctrine of the older jurists, the pro- perty of the husband and wife, whether it be acquired before or after the change of domicil, continues subject to the law of community notwithstanding they have removed to another domicil where that law does not exist. The change of the domicil neither divests them of any right which they had acquired under the law of their matrimonial domicil nor confers on them any right which they could not acquire under that law. If the law of community existed in their matrimonial domicil, they will not cease to be in community^ although they should have acquired another domicil in a country where no law of community was established ; and, on the other hand^ if there was no law of community in their matrimonial domicil, they will not liecome subject to the law of community because they have taken up their domicil in a country where that law does exist (a). The concurrence of jurists in this doctrine is so general that there are few who have dissented from it (b). This doctrine seems to result as a necessary and legitimate con- clusion from the theory that the communit}' exists by force of the tacit agreement of the parties, which is considered of the same weight as if it had been an express agreement ; because, if the rights of the parties, either in their present property or in their future acquisitions, had been conferred by an agreement, they could not be varied by a change of domicil (c). But if this theory is rejected, and the law of community has no greater operation than any other real law, it can never be necessary to consider the effect of a change of domicil on the interests of the husband and wife on their real property, because those interests in their present property, («) Burgc, 1st ed., i., (520, citing de Statutis, s. 9, c. 2, s. 7. Merlin's Pvodenb., de Jure, Quod., &c., ParH. Pep. tit. ("omm. ; ^lullor's Prompt., tit. Alt., tit. 2, c. 4, 9. 3; Sande, Decis., Comm. Pon., s. 2.'5 ; Ilertiuts, de Coll. lib. 2, tit. 5, def. 10 ; J. Bacquet, des Leg., ss. 48, 4i) ; Quebec, Lafleur, Droits de Just., c. 21, r.n. 27 et seij. ; 16-i ct sc(]. (ioris. Adv., tr. ], c. 7, s. .'} ; J. Voet, (h) Purge, nhi di. sii/i. : M;rviiis, ad Do P.itu Nupt., lib. 23, tit. 2, p. S7 ; Jus Lub., par.s. 2, tit. 2, art. 12, nn. A. Wescl, de Con. Bon. Soc, tr. 1, •i{)\etseq.; MuUer's Prompt., t6/t?. 23, ss. 104 d acfj. ; Groenew. ad Dig. lib. v., and tbo references, tit. 1, de Jud. 1. 05, p. 110; Mattb. {<•) See Bar, Gillespie, 415. Parpem. Bolg., i)Mr. 2, s. 00, 1*. ^'oet, CHANGE OF MATRIMONIAL T)OMICIL FRENCH DECLSIO.V.S. 779 as well as in their future ac(j[uisitions, are determined by the lex loci rei sifce. The application of this doctrine to the interests acquired by the husband and wiie in the personal property of each other under the law of their matrimonial domicil, so far as it regards property acquired before their removal from their matrimonial domicil, might, it seems, be maintained without the aid of the theory of a tacit contract. Thus the matrimonial domicil of the parties may be supposed to be in a country where, as formerly in England, the marriage is an absolute gift to the husband of the wife's whole personal estate, and the subsequent domicil may be in a country where, as formerly in British Guiana, the W'ife, by virtue of the ronimunio honorvm, retains an interest in her own and acquires an interest in her husband's personal property ; or the matrimonial domicil may have been in British Guiana and the subsequently acquired domicil in England. In the one case the whole personal estate of the wife has become vested in the husband, and the w'ife brings no personal property of her own into British Guiana, on which the law of community can attach. In the other case, the wife arrives in England, not only retaining an interest in her own property, but having acquired an interest in the property of her husl)and. The law of the matrimonial domicil has, in this case, already made a disposition of the property of the husband and wife at a time when the parties and the proj^erty were subject to that law. In neither case could the law of the new domicil be admitted without divesting rights which had been alread}^ legally acquired. But in the opinion of the greater number of the older jurists not only the property which had been acquired by the husband and wife before their removal from their matrimonial domicil, but even that acquired in their new domicil, is subject to the law of the matrimonial domicil; and their opinion has been sanctioned, even to this extent, by the decisions in France. French Decisions.— A person was married and domiciled in L., where the civil law prevailed. He afterwards removed to Paris and established his domicil there. On his death his widow demanded a share of his movables and of the acqurts made since the marriage. By an Arret of March 29th, 1640, her demand was rejected (d). A similar decision was given in the case of a person married and {d) Journal des Audiences, April 8tb, 1718. 780 EFFECT OF MARRIAGE ON PROPERTY. domiciled in Normandy who afterwards removed to and established his domicil in Paris. A demand by his widow for a share of the acquets made since the removal from Normandy was rejected {e). On the other hand, the application of this doctrine to the acquisi- tions of personal property made by the husband and wife in their new or actual domicil can only be sustained by means of the theory of a tacit agreement (/), or on the basis of the personal law(f/). Even its advocates do not all concur in subjecting future acquisitions after a change of domicil to the law of the matrimonial domicil. Thus, Huber was of opinion that they are governed by the law of the new or actual domicil (li). But if the law of community be a territorial law its power as to personal property cannot be more extensive than as to real property. As it affects only such real property as is actually situated in the country where it is established, so it affects personal property only when its owner is actually domiciled in the country where such law is established, because the place of his domicil is the situs in fictione juris of his movable property. The territorial law as to personal property is that which prevails in the place of its owner's actual domicil. He acquires and holds it according to the disj)osition of that law, and it depends on that law whether he and his wife acquire it for their joint benefit or for his sole benefit (i). The third view above mentioned has received the adhesion of the law of Louisiana. Law of Actual Domicil applied in Louisiana. — According to the law of Louisiana, if married persons remove from another State, or from foreign countries to Louisiana, the property acquired b}^ them in that State is subject to the community of acquets established by that Code (j). This provision is founded on a law of the Partidas (A), and in the commentary on the latter the distinction is taken between the property acquired in the matrimonial domicil, and that which is afterwards acquired in the new domicil. The former remains (e) Journal dcs Audiences, Arret, i., p. 197, s. 91, citing decisions of Court April Sth, 1718, cited by Boullenois, of Cassation. torn. 1, p. 767. Arret, May 7th, 1746, (A) Iluber, toui. 2, lib. 1, tit. 3, n. 9. cited by Merlin, tit. Com., p. oo\. p. o40. (/) liurge, 1st ed.,i., 622 ; Savigny, (/) Burge, iihi cit. shjk 8. 379 ; Guthrie, 293. (,/) Art. 2370, 1875, J. 131 et seq. (.,]).2d. (/) Do Nicols v. Curlier, [liH)()] 2 (j) Lord r)r.ainptoii, uhi sup., j). 44. Ch. 410. (y) Lord Halsbury, nU sup., p. 2f). (m) 4 Patou 581, at p. (ilT (and !=o (/>•) Lord Hramitton, p. 44. Lord Rosslyn, ihlil, ()45), cited by Lord CASE OF ENGLISH MATRIMONIAL DOMICIL. 787 affected by the later decision (n). Foote so regards it, and while admitting that " the argument that English spouses similarly enter into an implied contract that their property shall be regulated by English law has no doubt some plausibility," he thinks that, in the case of an English marriage, the distribution of property on the husband's death dej^ends upon the fact whether or not he dies intestate, which is in his own i)ower, for the wife acquires no vested rights in his property by marriage and does not contract for any (o). On the other hand, Westlake states the proposition that in the absence of express contract the law of the matrimonial domicil regulates the rights of the husband and wife in the movable pro- perty belonging to either of them at the date of the marriage or acquired by them during the marriage (j)) . The ruling in Lasldey v. Hog has been applied in England and Scotland as the undoubted rule (. 060. But see Boyer, Cuss. D., 1854, i., 62 ; 5, 6 ; 1 Froland, Mem., c. 4, p. 49, c. 7, p. 155; Pothier, Cout. d'Orleaus, c. 1, ss. 22, 23, 24, c. 3, n. 51 ; Yattel, B. 2, c. 3, s. 110, ibid., s. 103. (a) 1 Eose's Bank. Cas. 47b ; Pipon V. Pipou (1743), Ambl. 25 ; Potter i\ Brown (1804), 5 East, 124, 130; Bruce v. Bruce (1790), 2 Bos. & Pull. 229, n. ; Hunter ?'. Potts (1791), 4 T. E. 182, 192; Phillips v. Hunter (1795), 2 H. Black. 402, 405 ; Sill c. Y'orswick (1791), 1 II. Black. 665; Selkiig V. Davies (1814), 2 Eose's Bank. Cas. 97, 291 ; 2 Dow. Eep. 230 ; Coppin V. Coppin (1725), 2 P. Wms. 290, 293; Brodie v. Barry (1813), 2 Yes. & Bea. 127, 130 ; Birtwhistle v. Yardill (1826), 5 Bar. & Cress. 43S ; In re Ewin (1830), 1 C. & J. 151 ; In re Bruce (1832), 2 C. & J. 436. {h) Ersk. Inst., b. 3, tit. 2, s. 40 ; 2 Boll. Com. (McLaren), pj). 569, 574 ; Ivaims on Equity, b. 3, c. 8, ss. 3, 4. (c) 2 Kent's Com., ss. 37, 405 et seq. ; Holnios r. Ecmseu (1820), 4 Johus. WHERE MATRIMONIAL BEGIME NOT COMMUNITY. 793 Modern Opinion. — Modern opinion is not in accordance with these views, as has been stated at the opening of this chapter {d). As regards movable property, both in respect of the transmission of chattels and the assignment of choses in action the domicil of the owner is now of no importance {e). Movables are also assigned a lorus for certain purposes. The subjection of immovable property to the lex situs is b}^ no means now universal. As regards devolution on death the German law only recognises it to a restricted extent. Among modern jurists, as already stated in the case of community, Savigny extends the personal law of the spouses' matrimonial reijime to foreign real property (/) ; and Bar does so if the lex situs treats the marriage proj^erty as an unity (g). In England the effect of a marriage on real property is generally held to be governed by the lex situs (li) so far as capacity to deal with it and the mode and formalities of alienation of it iutei' vivos are con- cerned (/) ; but where the marriage in the absence of a marriage settlement imposes a certain rajime on the parties by the law of their matrimonial domicil, it has been held that that law will govern the rights of the parties to real property in England on the footing of a contract between them, so far as is consistent with English law {h). In the United States the effect of marriage upon the rights of the parties as to immovables is determined by the lex situs ; but there a lien on a husband's estate created by the law of the matri- monial domicil to secure tlie wife's dotal portion can be enforced on real property in another State, and obligations of a wife, ci-eated l)y her and good by the law of her domicil, are similarly enforceable against her property in another State (/). Ch. Eep. 460; Guier v. O'Daniel (i/) S. 411, Gillespie, 183. (1806), 1 Binney's Eep. 349, n. ; (/() Dicey, 503, 504 ; AVestlake, TO, Livermore's Dissert., pj). 128—132; 207. Blake v. Williams (1828), 6 Pick. E. (/) Dicey, 500—503. 286, 314 ; United States v. Crosby (A-) De Nicols v. Curlier, [1900] 2 (1812), 7 Crauch, 115; Clark v. Ch. 417. See Dicey, 512, 810— 813 ; Graham (1821), 6 Wheatou's E. 597 ; Westlake, 72—75, and 205, 273, 285 ; Kerr v. Moon (1824), 9 Wheaton's E. Eichards v. Goold (1827), 1 MoUoy, 506; Harper v. Hampton (1805), 1 22; Camj)bell v. Dent (1838), 2 Moo. Harr. & Johns. Eep. 687 ; Goodwin v. P. C. 292. Jones (1807), 3 Mass. E. 514, 518. (/) Dicey, 1st ed., American Notes, [d) See p. 766. c. xxii., 527 ; Wharton, s. 195 ; Story, (e) See p. 790, n. (/). s. 187 ; Kendall v. Coons (1868). 1 (/) S. 379, Guthrie, pp. 292, 293. Bush. Ky. 530. 794 EFFECT OF MARRLIGE ON PROPERTY. In France, as has already been seen{m), the jurisprudence and jurists are not in agreement as to the respective limits of the personal law and the lex situs in questions concerning real property ; but while, on the one hand, there are high authorities to the effect that a foreign law of the jDarties' matrimonial domicil will not apply to land in France (/?), on the other, the spouses' capacity inter se with regard to property including land in France is determined by their personal law, and their matrimonial ri-gime will govern it so far as French law allows io). Siumnary. — The interests which the husband and wife acquire or retain in the property of each other, are therefore governed, if the property be movable, by the law of the domicil, and if it be immovable, by the law of its actual situs unless the law of the matrimonial regime constitutes a contract between the parties. The nature and extent of that interest, the modifications or qualifications to which the husband's right in the wife's property is subject, the provision which is afforded her from his property or her own, either by her equity to a settlement, by allowing her to hold separate property, or to be treated as a feme sole, these and similar provisions, and in short, whatever aft'ects the value, the enjoyment, or the dura- tion of those interests, fall under the subjection to and determination of the law of the domicil or situs, according as the subject be movable or immovable property subject to the exception above (p). (d ) Capacity of Spouses to Deal with Property. — Burge ( pp) next discussed the law which should govern the capacity of spouses to deal with marital property. It would seem also to follow from these principles that so essential a part of those interests as the power or capacity to alienate property stante matrimonio, would be governed l)y the same law as that by which the title or the validity of any disposition of property was governed. Older Jurists Favoured Personal Law. — But there are jurists who consider that the capacity or incapacity to alienate property depends on the personal law as part of the person's status or (m) P. 775. ((/) 1887, J. 190, C. de Paris ; 1903, («) Cass. 1882, J. 87. See 1882, J. J. 3(>G, Seine; 1893, J. 413, Seine; 293; 1894, J. oG2 (case of succes- 1893, J. 415, T. C. Bonlcuux : 1891, won), Cass.; 1899, J. 558, Algiers; J. 1171, Algiers. Cans, 1881, J. 420, matrimonial con- {p) I)c Xicols v. QnvVwv, ((>((<', and tract does not aj)j)ly to land in i'rance see p. 793. so far as it conflicts with Preuch law. {pj>) Burge, 1st cd., i., 033. LEX SITUS GOVERNS DISPOSITIONS OF IMMOVABLES. 795 condition, and is conferred and governed b}' the law of the domicil or nationality. Amongst these may be named Eodenburg (7), Ilerz (r), and Huber(s), and, subject to some qualifications, the greater number of the older French jurists (0- The adoption of this opinion in respect of movable or personal property, would not have the effect of qualifying or abridging the rule which subjects this species of property to the law of its owner's domicil or nationality, because the status or capacity is conferred by the same law {n). But it tends greatly to abridge the force and extent of the rule which subjects immovable property to the law of its situs. It has been controverted by Burgundus (.r), Dumoulin (//), Stockman (^), P. Yoet {a), and J. A^oet(^). Lex Situs Governs Dispositions of Immovables.— Surge's Conclusion. — The rule which subjects the disposition of immovable property to the law of its situs seems to require that the disponing capacity or power should be also governed by that law, because there can be no disposition, if there be not a capacity or power to dispone. The decisions in the English, Scotch, and American Courts sanction the rule, that the validity of the title to immovable property, wdiether it be acquired by the act of the parties or by the operation of law, and whether it depends on the personal capacity of the party to alienate or on the capacity of the property itself to be a subject of alienation, is governed by the law of its situs (c). [q) Eodenburg, De Stat. Div., tit. 2, c. 1, s. 1, u. 7, p. 2 ; and see Bar, c. 1, p. 10, andp. 1, tit. 1, c. 2. s. 183, Gillespie, 410—412; Weiss, (;•) 1 Hertius, Opera, De CoUis. Leg. iii. 557. s. 4, n. 23, p. 133, and n. 8, p. 123, {11) But now see p. 7i'3, oy(fe. 12 1, and n. 22, p. 133. (x) BoulL, torn. 1, tit. 1, c. 2, obs. 6, (.s) Huber, lib. 1, tit. 3, s. 12. p. 129. {t) Burge, 1st ed., i., 033, citing {y) 1 Frolaud, Mem. 00. IBoull. 57, 77, 7S, 102, 154, 155, 175, {z) Decis. 125. 183, 194, 295, 499, 700, 705—731 ; («) P. Ycet, de Stat., s. -J, c. 2, n. 7, 1 Boull. Pr. Gen. 29, 30, 31; ihld. p. 124. 101, 102 ; Merlin, Eep. tit. Testament, (/') J. Yoet, ad Pand., lib. 1, tit. 4, se^t. 1, s. 5, art. 2; Majorite, s. 5; ss. 2, 9. Autorisation Maritale, s. 10, art. 2; (c) Burge, 1st ed., i.,634; Dundas Puissance Paternelle, s. 7 ; 1 Proland, v. Dundas (1830), 2 Dow & Clark, 349; Mem. Go, 66, 156, 171 ; 2 Froland, C'oppin v. Coppin (1725), 2 P. Wms. Mem. 824, 825, 1570, 1594, 1595; 291, 293 ; a?iie, p. 793 ; and references Bouhicr, Cout. de Bourg., c. 24, ss. 91 in note [k); Story, 431 — 463; Dicey, -108, pp. 476, 477, 478, c. 23, ss. 90— 501, 502, 1st ed.. Am. Notes, c. xxii., 96, p. 461 ; Potbier, Cout. d'Orleans, p. 527. 796 EFFECT OF ^^lARRIAOE ON PROPERTY. Modem opinion is to the same effect. But this does not prevent the rights given to the spouses by the matrimonial regime being enforced as an implied contract against their real property so far as the lex siitis allows ((/). Mutual Rights of Spouses as regards Immovables. — Burge's Conclu- sion. — From the preceding principles it would follow as a necessar}' conclusion, and it is admitted by all jurists, that the title to viduite and doiKtire, and consequently, to curtesy, dower, and terce, is governed b}' the law of the country in which the immovable pro- pert}' is situated, out of which those interests are claimed. Hence that law determines the circumstances essential to the acquisition of the title, the quality of the immovable property which is subject to them, the measure or its proportionate value to the whole of the estate, the duration and manner of its enjoyment, the obligation which the survivor incurs, the burthens to which he is subject, the causes for which it is forfeited, in what manner, by what settle- ments before or after marriage, and by what testamentary or other provision it may be satisfied or barred (e). Modern opinion is also in accordance with this. Thus in Quebec (/) customary dower and conventional dower consisting of real property is governed by the lex situs {g), and the latter is enforceable even though by the law of the matrimonial domicil there would be no such right (/O. (e) Ante-nuptial Debts. — Burge's View (/). — It has been already observed that in those countries where the communio honorum prevails the debts contracted by either of the parties before the marriage become chargeable on the property of the community (./). This liability is so necessary- and equitable a consequence, and so essential a part of the community, that those who maintain that the community, if it exists by the law of the matrimonial domicil, continues, notwithstanding the domicil be removed to a country {(1) See ante, pp. 7(;.j, 1\r.',, 794. Ildertou (1793), 2 IL Black, p. 145. (e) Burge, 1st ed.,- i., (i.'JS, citing (/) C. C. of L.C. art. 1442. Basnago, art. 307, ii., p. 4 ; Pothier, [g) Lafleur, 169. tit. Douaire, p. 1, c. 2, n. 127 ; Merliu, (//) Erichsen v. Cuvillier (isso), 2.5 tit. Douaire, ss. 1, 2, p. 245 ; Morliii, L. C. J. 80; rruiiier v. Meuard (1896), tit. Effot Retro., xvii., Tiors-Coutuuie, 3 R. de J. 153. Yiduitt', Gains Nuptiaux ; Denisart, (/) 1st ed., i., G35. tit. iJouairo ; Boullcnois, Froland ; ( /) This is so by the Relgian Code Argon., toiii. 2, j). 133; Ilderton r. Civil, art. 1409. ANTE-NUPTIAL DEBTS. 797 where it does not prevail, justly assume it to be an incontrovertible proposition that the liability of the community to the debts would continue to be that which had been once incurred according to the law of the matrimonial domicil. Even in those countries where the community does not prevail, but the marriage is an absolute gift to the husband of the wife's movable property, justice requires that as he has acquired her movable property he should also pay her movable debts, and that as the gift of the wife's movable estate which had already been made by the law of the matrimonial domicil was not rescinded, so neither ought his liability for her debts to be abridged by any change of domicil. The liabilit}^ either of the property in community, or of the hus- band personally, in consequence, either of the relation in which the wife is placed or of the marital authority, or of the existence of the community or of the exclusive acquisition by the husband of the wife's movable estate, has been so universally admitted, that it seems not to have been supposed that upon any change of domicil there would exist a law exempting either the community or the husband from this liability. The effect of a change of domicil on such liability has not therefore been the subject of discussion. Questions have, however, arisen on the character or quality of debts contracted by the wife before the marriage, as whether they were movable or immovable, and consequently whether the com- munity was charged with them. It has been considered that the law of the creditor's domicil at the time of the marriage determined the quality of the debt as between the husband and wife, and that it retained the quality of movable or immovable wliicJi then belonged to it, notwithstanding the creditor may have changed his domicil to another country where it has not the same quality (k). It seems consistent with the principle deducible from this opinion to hold that the husband's liability continues to be that which he had incurred on his marriage by the law of the matri- monial domicil, and that it will neither be excluded nor restricted in conformity with a different law prevailing in his actual domicil. The law of the matrimonial domicil is, on this occasion, imported into the actual domicil, not to make, but to prevent any alteration (A-) Pothier, Tr. de la Com., p. 1, cited in Merlin, tit. CommunautL-,, c. 2, n. 246; Lebruu i\ Eenussou, s. 3. 798 EFFFXT OF MARRIAGE OX PROPERTY. in the rights which had ah-eady l)een acquired, for it leaves the parties in the same condition in which they were i^laced on their marriage by the law of the matrimonial domicil. The interests of the creditors are not affected by adopting that law, because tlie husband's liability, whatever be its extent, is an additional security, which on his debtor's marriage he ol)tains for the payment of his demand. Modern Opinion is to the same effect (/)• (f) Debts and Charges on Immovables. — Surge's View. — As the extent of the beneficial interest which the husband and wife take in the estates of each other by tlie titles of curtesy, viduitc, douaire, dower, and terce must depend on the burdens to which those estates are subject, it belongs to the lex loci rei sit(V, which confers those estates and interests, to determine what are the real or immovable debts to which they are subject and to what extent the husband and wife are respectively bound to contribute to the payment of those debts (m). (g) Dispositions of Immovables to Spouses. — Bm-ge's View. — In selecting the law which should determine the effect of dis]3ositions of real property made to the husband and wife, a distinction must be taken between those cases in which the import of the particular expressions used in the instruments contnining those dispositions is to be ascertained and those in which the law acts on that imj^ort which has thus been ascertained. Effect. — An instance of the latter description has been stated in that of a conveyance to a man and his wife in such teiiiis as would give an estate in joint tenancy to two persons who were strangers, but will not, according to the law of England, give such an estate to the husband and wife, but cause tliem to take l)y entireties (n). Such a rule is a law incident to and forming part of the title to (Z) See De Greuchy v. Wills (1879), 4 s. 13, Westlake, 29S. If the spouses' C. P. D. 302, where a Jersey woman's personal law prohibits the system in debts incurred in Jerse}' were held force at the place of celebration of not recoverable (except to the extent marriage thoj' are presumed not to of his assets derived from his wife) have intended it to apply : 1903, J. from her husband, a domiciled 300. Englishman who had married her in (7/1) 1882, J. 293; 1899, J. ooS. England. See Married Women's Pro- (h) Burgo, nhi cit. sujkGSS; and see l)f'rty Act, 1882 {-io & 40 A'ict. c. 75), Burge, 1st ed., i., 637; supra, p. 700. MARRIAGE CONTRACTS — FORM. 799 immovable properly acquired by husband and wife under a conveyance to them ; and, therefore, without regard to the law of the domieil, or to that of the place where the instrument was executed, the law of England would prevail and prevent them from acquiring an estate thereunder in opposition to this rule. Meaning. — In the former case the expressions in which the dis- j)Osition is made may have an imj^ort in the country in which tlie instrument is executed different from that which they bear in the country where the subject-matter is situated. It becomes, therefore, a question with respect to such dispositions, as well as to ante and post-nuptial contracts, which is the next head of the subject, whether the import jn-evailing in the place of the domieil, if the subject of the disposition be personal, or in loco rel sitce or in loco contractus, should be adopted in their construction (o). II. Marriage Contracts. — Modern Opinion.- — If the spouses determine their mutual rights to property by specific contract either before marriage (7;) or after marriage if they belong to a country where a marriage contract may be made either before or after marriage (as in Germany), in all systems of jurisprudence their rights are treated as governed by it with regard to all movable property then or afterwards acquired, subject to this not contravening the law of the i)lace where the contract is sought to be enforced (q), or that of the place where the parties are resident or the property is jjlaced (;■). Such a contract may be to any effect that the parties choose, even adopting a foreign law if this is allowed by their personal law(rt). The capacity of the parties to enter into it is governed by their respective personal laws {b). The formal validity of such a contract (0) Burge, 1st ed., i. 638; Eamsay 112; 1893, J. 1196; Weiss, iii. pp. 543, V. Eamsay, Pac. Coll. July 11th, 544; Toulou, 1878, J. 586; 1888, J. 1833 ; Austruther r. Adair (1834), 2 515, Erench Cousular Court at Cairo ; Myliie & Keen's Eep. 513. 1875, J. 131, Louisiana ; 1885, J. 76. [l') In France and Belgium a In Louisiana this has been denied ; marriage contract made after marriage Bourcier v. Lanusse, 3 Mart. 587, is void. Code Civ. (Belg.), art. 1394. and 1875, J. 131 ; Wharton, s. 201. {<}) Wharton, s. 199 ; De Lane v. (/>) England, In re Cooke's Trusts Moore, 14 How. 233; Dicey, 655, cit- (1887), 56 L. J. Ch. 637; Cooper f. ing cases; and 1st ed., American Notes, Cooper (1888), 13 App. Cas. 88; 0. xxvi. 658; 1886, J. 730, Leipzig; Duncan v. Dixon (1890), 44 Ch. D. 1894, J. 127, 128, Boulogne (Scotch 211 ; Viditz v. O'Hagan (1899), 2 Ch. wife) ; 1900, J. 520, Eoumania. 569 ; Dicey, 635, n. ; Weiss, 532, (r) Wharton, s. 201. 533; Bar, Gillespie, 419 et se^. ; Ger- (a) Este V. Smyth (1854), 18 Beav. many, Keidel, 1899, J. 44, 1900, soo EFFECT OF MARRIAC4E ON PEOPERTY. is general!}' determined by the lex loci contractus (c) ; but if both parties are of the same nationality, according to some recent Continental opinions, the forms of the national law may be used ; if they are of different ones the lex loci forms are generally obligatory (J). In England, if the parties' intentions are clear and one of them is English and the proj^erty is in England and mider the control of the Court, the Courts will not hold the observance of local forms necessary [c). The contract will generally be construed and given eflect to according to the law which the parties shall be presumed to have had in their minds, and this is generally considered to be the law of the matrimonial domicil (/), though the view is also strongly supported J. 635. In Erauce tlie provisious of form, but foreigners in Germany art. 1394, Code Civ., requiring the contrat de mariar/c to be made before a notary, are ajiplicable to French persons abroad as well as in France (1881, J. 153, Eeunes). But the French form is not obligatory abroad (see Vincent et Penaud, p. 296, and cases there cited). Art. 1395, making the marriage contract immutable after marriage applies apj^arently to foreigners in Fiance as being cVordre public : 1900, J. 987 : see Weiss, iii. 534 ; and see 1882, J. 338, Cologne, Eeichsgericht; 1902, J. 839. Certain authors think the provisions of aits. 1394 and 1395 do not apply to foreigners in France: Aubry, 1896, J. 721; Beauchet, 1884, J. 39; Jay, 1885, J. 527 ; and 1902, J. 361, T. C. Seine. In Italy the law on the similar art. 1385 is the same, regarding it as a question of public order. The French rules do not apply to foreigners whose personal law allows them to revoke such contracts: 1902, J. 301. In English law capacity to make a maniage settlement depends on the law of the domicil. Dicey, 635, u. (c) Institute, 1888, Lausanne, art. 13; Ann. X. 78; Weiss, iii. 536; 1879, J. 175; CasH., 1881, J. 153. By Uermau Civil Code, Intr. Law, art. 11, Germans can contract abroad in local must comply with s. 1434; for Italy, see Cass. Turin, 1886, J. 617. See Cass. France, 1887, J. 179. {(l) Weiss, iii. 537. Foreigners in France can use French forms or those of their own law. Beauchet, 1884, J. 39; Douai, 1887, J. 57; Institute, ubi cit. supra, allows national form. This is not, however, yet generally accepted. Wharton, s. 199, adojrts lex loci actus for form. Weiss thinks that the requirement in French law of publicity for marriage contracts by certificate given by the notary witnessing them does not apply to foreigners, iii. 538, 539 ; and similarly with regard to publication of judg- ments of separation of goods though the jurisprudence on this point takes the contrary view, iii. 540. See post ; and so Surville, cited by him. ((') Tan Grutten v. Digby (1862) 1, 3 Beav. 561 ; Watts v. Shrimpton (1855), 21 Beav. 97. (/) In re Muspratt- Williams (1901), 84 L. T. 191 ; Lansdowne v. Lans- dowue (1820), 2 Bligh, 00, 87; An- struther v. Adair (1834), 2 M. & K. 513; Wharton, s. 199; Chamberlain V. Napier (1880), 15 Ch. D. 614; Phillimore, 329 ; Dicoy, 637 ; Foote, 331—338 d seq. ; Lafleur, 162 ; and see Bar, Gillespie, 422. Story thought MARRIAGE CONTRACTS — EFFECT. 801. that this should be the personal or national law of the parties (//). In England the parties are held to adopt a foreign law for this purpose either by express dechiration to such effect or by inference from their use of terms or provisions of foreign law (/O ; and in France it has been authoritatively laid down that tlie intention of the parties is to be sought for as decisive (/). A change of nationality or domicil will not affect the contract (A) ; and for carrying out the contract the law governing it when made will continue to determine the wife's capacity under it though it will not do so for a new agreement (/). Property not dealt with by the contract is governed by the rules applicable to the case where there is no contract (/«)• A change of nationality or domicil made by the marriage may, however, affect the capacity of the jiarties inter se under a marriage contract ; and thus an infant wife acquiring by marriage a new domicil has been held in England capable of repudiating such a contract as ultra vires which by her former law she could not after that time have repudiated (»). As regards real property, in England a marriage contract has not the effect of a conveyance if it is not in English form, but it will have full operation as a contract against such i^roperty (o), which will that the lex Jvci contractus should govern interpretation : s. 276. See Ex parte Sibeth (1885), 14 Q. B. D. 417. But the true test is always intention : Foote, 336 ; Clunet, 1875, J. 281, 282 ; and so 1899, J. 825, French hxw. The law of the matrimonial domicil has the balance of authority on the Con- tinent: 1875, J. 281, Prussia; 1899, J. 744, 746, T. C. Seine. Some opinions incline to the lex loci contractus in the sense of the place where the contract is to be executed, which comes to much the same thing- as above : 1899, J. 423 ; Bar, 423. [g) So Weiss, iii. 532, 546; Bar, uU cit. sup. ; 1893, J. 413. In France a Jewish marriage contract has been held governed by Jewish law : 1890, J. 298; 1899, J. 1023. (//) Collis V. Hector, 1875, L. E. 19 Eq. 334 ; 1875, J. 445, provision that husband should not transfer his M.L. domicil abroad : In re Megret, [1901] 1 Ch. 547 ; In re Bankes, [1902J 2 Ch. 333; Surman v. Fitzgerald, [1903] 1 Ch. 933 ; [1904] 1 Ch. 574. (/) 1899, J. 744, 746; 1902, J. 314, C. A. de Paris. (^•) Phillimore, 331—334 ; Dmican V. Cannan (1854), 18 Beav. 128 ; (1855), 7 De G. M. & G. 78 ; Dicey, 639. (/) Guepratte c. Young (1851), 4 De G. & Sm. 217. (??)) Phillimore, p. 335 ; Dicej-, 639, citing cases; 1897, J. 404, Brazil; Westlake, 72, 78, 81, citing Watts v. Shriiapton, above. («) Viditz V. O'Hagan, [1900] 2 Ch. 87; 1902, J. 870. See Gesling v. Viditz, 1904, J. 680 (C. A. d'Orleans). (o) Westlake, 75; Dicey, 500—512, 572, 810—813; Williamson, Vendor and Purchaser, 851, 852; see Burge, 1st ed., 638. 51 802 EFFECT OF MARRIAGE ON PROPERTY. ground a personal action to compel a transfer in the manner prescribed by the lex situs, unless the latter law prohibits such a disposition as that made by the contract. Thus, if the lex loci rei sitce prohibits the reservation by contract of douaire to a greater amount than the law itself gives, a nuptial contract, in whatever place it was made, could not confer on the wife a title in contraven- tion of that law(_/j). It has not been decided whether the formali- ties of such a contract relating to real property are governed by English law or the lex situs, but it seems that they will be governed by the latter ((/). The rights given by the contract are subject to the lex situs, and Story thought that the same law governed all matters connected with land, including the effect of contracts relating thereto ; but the view stated above is held by Westlake and is in accordance with the view which is receiving increased support on the Continent (r) ; and if the law of the matrimonial retjime is subordinated to the lex situs in case of conflict between them, no difUculty is likely to arise. In the United »States a marriage contract relating to land is construed according to the lex situs (s). In France, and, generally, on the Continent, the tendency seems to be to give full effect to the marriage contract with regard to all property of the sjjouses, real or personal, subject to the limits fixed by the lex situs (t). The rights of the spouses in succession to each other are governed by the law of the domicil of the deceased so far as the contract does not provide otherwise (u). Their rights inter se by the contract are, however, liable in English law to be postponed to those of third parties in the case of bankruptcy of one of the spouses, in which case the lex fori determines the priority of creditors (x), but by the (p) So Lafleur, 163, citing C. C. of (s) Dicey,lyted.,Am.Notes,i}27,52S; L.C., art. 1259, aud Wilson v. "Wilson, Kelley v. Davis, 28 La. Ann. 773, effect 2 li. de L. 431, who thinks that some of a contract between husband and stipulations may be against public wife as to realty is governed by lex policy of the lex situs; France, Seine, situs ; Long v. Iless, 154 111. 4JS2. 1899, J. 345, where dotal property was {t) 1S99, J. 744, T. C. Seine ; 1902, inalienable by (Swiss) lex situs; but in J. 314, C. A. Paris. 1902, J. 177, Dutch law (C. C. 198), for- («) Westlake, 81, citing I'oubort r. bidding spouses to stipulate generally Turst (1703), 1 Br. P. 0. 129 ; Lashley that a foreign law or obsolete law should !'. IIog(1804j, o;;^e ; Hernando f. Saw- govern their property, relates to form tell (1884), 27 Ch. D. 284; Dicey, 643. ..nlj. See 1903, J. 366, Italian law. (./•) Thurburu v. Steward (1871), (7) Dicey, 502. L. P. 3 P. C. 478; Ex parte Mel- {)■) Westlake, 75. bourn (isTO), L. P. 6 Ch. 61. See GIFTS BETWEEN SPOUSES. 803 adoption of a particular law iu the contract the rights of creditors may be excluded {.rx). III. Donations uiter Conjuges. — Burge's View. — The laws which prohibit or admit under curtain restrictions donations by either of the married persons to the other stante nuitrlinonio, are classed by some jurists as territorial laws, and they do not, therefore, extend their power beyond the territory in which they are established (j/). The donation, if the subject of it be immovable property, will be valid or invalid as it is permitted or prohibited by the lex loci rei sitce, and if the subject of it be movable property its validity will be governed by the law of the domicil (//). Modern View. — iVlthough this view still occasionally is expressed (,:), modern opinion treats the laws which govern donations inter coii- jiKjes as regulated by the question of capacity (a). On this ground a prohibition against such donations existing by the lex situs may not be applicable to married persons domiciled in another country (h). The personal law is thus applied to donations of real property as much as those of personal property (c), though there are authorities which subject real property to the lex situs (d). The personal law for this purpose is that which the spouses have at the time of the act in question, according to the balance of opinion (c), though in Canada (Quebec) it was held in one case that the law of the matrimonial domicil would govern even after Bar, Gillespie, 417, -ilS ; Uicey, Goo; where it is to take effect. Westlake, 175. In 1882, J. 233, a wife (a) 1879, J. 385, n. ; Bar, 419; see was allowed to prove for her share iu Savigny, s. 379 ; Guthrie, 297 ; the funds of the marriage settlement, Laurent, v., 221 et seq. ; Wharton, which had been made abroad, and had s. 202. not received executory force in the _ (h) Bar, s. 187 ; Gillespie, 420 ; /vniin of the bankruptcy (Geneva). and cf . Broomer v. Arthur, [1898] A. C. (x.r) In re Fitzgerald, [1904] 1 Ch. 777, where deed of family arrangement 573. as to land held not to be a conveyance (v) Burge, 1st ed., i., 639; Pothier, by husband and wife prohibited by Tr. des Don. entre mari et f euime, art. 2, Jersey law. n. 19. So the majority of French (c) Bar, 420. authors on old French law; Merlin, (d) 1891, J. 508; 1892, J. 940 ; 1894, during transition period between old J. 562, Cass., Zammaretti Case ; 1899, law and Code Napoleon ; and since the J. 558, Algiers ; 1882, J. 295, n. Code the Cour de Cassation, 1857 (D. (e) Savigny, s. 379; Guthrie, 297; 57, i., 102), 1 Foelix, i., nn. 60, 93. Demangeat on Foelix, i., pp. 109, 228 ; {z) 1898, J. 935 ; 1899, J. 385, on Bar, 419 ; Lafleur, 174, on the ground appeal, held to be a contractual relation that the tacit agreement theory cannot governed by the will of the parties and extend to matters not the subject of a subject to the law of the country contract. So Clunet, 1899, J. 407, n. 51—2 804 EFFECT OF MARRIAGE OX PROPERTY. a change of domicil to a country where such donations are prohibited. But on appeal the Court found it unnecessar}^ to decide this question, as they held that the alleged donations were not more than customary jjresents, and, as such, authorised by the law of the actual domicil. The view taken in the superior Court appears to be unsound (/). A distinction has been made between gifts made before and gifts made after such a change of domicil, the former being regarded as valid and not affected by the subsequent pro- hibitive law', being vested rights, while the latter are subject to the latter law (g). The same personal law decides if spouses can alter existing contracts of marriage after marriage has taken place, subject to any prohibitions imposed on the jDroperty of which the donation is made by the lex situs (li) ; but the 23roof of such gifts can only be admitted in France in accordance with the lex fori {(). Bar distin- guishes between restrictions imposed on the legal capacity of the wife as such and the limitations on the wife's rights of disposal owing to the husband's rights, applying to the latter the law of the matri- monial domicil and to the former the law of the actual domicil (n) ; and this distinction seems to be recognised by English Courts (A). Special remedies or rights of the wife, given to her by her personal law, will, it seems, be recognised elsewhere if they are allowed by the lex situs (l). An exam^Dle of such a remedy or right is afforded by the legal hypothec of the French law, which is only available between French spouses marrying in France or persons having that right by treaty between their country and France (m). (/) Eddy V. Eddy (1897), 4 R. de J. {i) Thus, a gift of lace by an Englisli 78 ; 1898, 11. J. C. 7 Q. B. 300, under husband to his wife in France could C. C. of L. C, art. 1265 ; 1899, J. 407. not be established by witnesses : Abdj-- But this case is of doubtful authority. v. Abdy, Cass., June 14th, 1899 ; 1899, See Lafleur, p. 173. J., p. 804 ; 1900, J., p. 977. ((/) Pothier, Don. entre mari et {it) Bar, 417, 418 (see p. 763, ante) ; fename, n. 19. see 1879, J. 75, Turin, Cass. ; 1899, (/i) Bar, Gillespie, 421 ; 1899, J. 558, J. 515, wife's power of disposal of real above. So with regard to laws declar- jiroperty without hiisband's sanction, ing the inalienability of (/oi : 1902, J. (A-) See, €.. (.s) Milasch, (3;i'J— (311, INFLUENCE OF THE CHURCH. 813 A marriage M-as the result of an agreement made l)etween the husband and the nioml or momher of the girl. This made a divorce by mutual consent an anomaly. With the Franks a marriage was or might be dissolved on any of the following grounds, viz. : (1) by the death of either of the parties ; (2) by agreement ; for as the marriage was an agreement between the husband and the moncl, or — afterwards — the relatives, of the wife, and still later the wife herself, it might be dissolved in the same manner as it had been made, by a subsequent agreement between the same parties as had formerly entered into the marriage contract ; (3) by law, if the husband had been judicially declared echteloos, in consequence of his being excommunicated ; (4) by the husband declaring his intention to divorce his wife, (a) either for good cause such as adultery of the wife, her attempting to take the life of her husband, or her refusal to follow him, indecent acts committed by the wife, poisoning, sterility ; (b) or without good cause, by expelling the wife from his house. In such a case, however, the husband incurred a pecuniary liability, and he was bound to return to the wife all her property, and sometimes to pay a line in addition (t). On the other hand, the wife could not, merely of her own accord, divorce her husband. Under the influence of the civil law, how^ever, she came to acquire in course of time certain rights in this respect under the laws of the Frankish kingdom (a). Influence of the Church. — The Catholic Church did not allow "i^ien to put asunder whom God had joined together " (a) ; and though adultery caused the severance of the bond between husband and wife, yet neither of the parties was allowed to re-marry. These rules militated against the customs of the people, and, in practice, such severity could not at first be maintained. The Church, in its endeavours to spread its doctrines and to obtain hold of the com- munity, commenced by relaxing its requirements, and by recognis- ing divorce under certain circumstances. But this was not the policy of the heads of the Western Church. Leniency of such a nature was neither contemplated nor sanctioned by them. Gradually it was discarded, and the resolutions of the Council of Trent settled. (t) Fock. Andr., Annot. ad Grot. (n) Fock. Andr., he. cit. Introd., i., 5, 18, p. 12. (o) Matth. xix. 6. 814 DIVORCE — ROMAN-DUTCH LAW. the Church's poHcy. At the end of the eleventh century they were generally observed. Any marriage was then, as a rule, considered indissoluble (h). During the Middle Ages in the Low Countries, as elsewhere, the Church had jurisdiction in matrimonial causes ; consequently divorce proceedings appear to have been, as far as possible, prohibited. As the Church allowed judicial separation a mensd et tow, pro- vided it was obtained with the co-operation of the spiritual autho- rities, such separation was continuously made use of. It was either jjronouuced b}^ the Church authorities or with their co-oj^eration. Unless so pronounced, the Church did not recognise the judgment. The grounds for judicial separation were various. To a great extent they were left to the discretion of the Court. Among them were adultery, infectious disease, malicious desertion, attempt by one spouse to take the other's life, and hatred endangering the life of •either of the spouses. In Dordrecht, separation might be obtained by mutual consent (c). When the canonical Courts lost their jurisdiction in secular affairs, the lay judge granted separation a mensd et toro; but as ■divorces now became possible {cc), the separations grew rarer and were seldom mentioned by the legal authorities. The authorities do, however, mention divorce and the grounds on which divorce could be asked and obtained from the Courts, the chief ones being adultery and malicious desertion {d). Capital punishment, banishment, punishment next in degree to capital punishment, and impossibility of access, were also mentioned as reasons for divorce (e). Divorce was regulated by statute in the Political Ordinance of 1580 and the Editreglement of 1665. {h) Cf. pp. 809 et seq. ; Fock. Aiidr., enim malitiosam desortionem luatri- Aimot. ad Grot., Introd., i., 5, IS, moiiiiiui solvi seiitiunt reformatix) Ijp. 13, 14; Het Oud Xed. B. E., ii., religionis piofessores " ; H. Broinvtr, 1!'4. De Jure Conn., ii., 18, 12. ((■) l*'ock. Andr., Aunot. ael Grot. (e) Fock. Andr., Ilet Oud Xed. Introd., i., b, 18, p. 14; Hot Oiid 13. E., ii., 199— 201. The influence of Ned. Ii. R., ii., 19(3, l!)iS. the CJiurch is, probably, the principal (' c) Cf . p. 811. reason that no mention was made of ((/)Tock. Andr., Hot Oud Ned. B. E., divorce on account of malicious dcser- ii.,199 — 201 ; GrocnewegeUjLo},'. Abr., tiou in the Middle Ages. "Wessols, Cod. v., 17, lex 7: "per hujiisniudi llisttiry, pp. 4(39 — 171. S£U>AJU7J0 A ME\SA ET TOllO. 815 Separatio a Mensa et Toro (/). — Separation is a temporary suspension of tiie marital life, which, without dissolving the mar- riage tie and with a view to a future reconciliation, relieves the spouses for the time being from the obligation of living together, or, in other words, separates them from bed, board and cohabita- tion (c/). Separation could only be granted by a judicial Court on proper grounds, and could not be arranged by mutual consent without such a judicial pronouncement (A). The grounds were : (1) the same as those which would be grounds for divorce, viz., adultery and malicious desertion, if possibility of a reconciliation had not yet altogether gone (i) ; ('2) serious quarrels and differences between the spouses which might have consequences dangerous to the life and safety of either of the spouses ; habitual cruelty and ill-treatment (A) ; (8) the husband's squandering away of his wife's fortune to such an extent that there would be danger of his reducing her to poverty il) ; (4) venereal disease or any other cause of suspicion that adultery had been committed (/?/); (5) mutual consent (u) ; (6) attempt by either of the spouses on the life of the other ; refusal to live together ; compulsion on the part of the (/) Grotius, Introd. i., o, 20; Schorer's Notes ad Grot., lutrod., lor. cit. ; Van Leeuweu, E. II. E., i., 15, 3, 4; Cens. For., i., 1, 15, 4; J. Brouwer, De Jure Couu., ii., 29; J. Cos, Huwelyck, s. 170 ; J. Voet, Ad Paud., xxiv., 2, 16 et seip ; Lybreglits, Eeden. Yertoog, i., 12, 18 — 27 ; Van Zurck, Codex Batavus, voce " Houwe- lyck," s. xxxi. ; Schrassert, Codex Geho. Zutf., voce Huwelycks-saecken, X., and Separatio a mensa et toro; Bynkershoek, Qusest. Jur. Priv., ii., 9 ; V. d. Keessel, Thes. Sel., Thes. 90 ; v. d. Linden, Koopmansli., i., 3, 9, p. 31. (g) Eclitreglemeut voor de Generali- teytslanden, 1656 ; Groot Placaatboek, ii., 2446, a, 92; Lybreglits, Eeden. Vertoog, ii., 12, 18. (h) Grotius, Introd., i., 5, 20; Schorer's Notes ad Grot. Introd., loc. cit. ; Neostadius, De Pactis Anten. Decis., 7, 8, in notis; Lybregb.ts,Ecdeu. Vertoog, i., 12,20, and 22, 23; J. Voet, Ad Pand., xxiv., 2, 17, par. 2; J. Brouwer, De Jure Couu., ii., 29, 4; V. d. Linden, Koopmansli., i., 3, 9, pp. 31 e^ scy. (t) J. Brouwer, De Jure Conn., ii., 29, 8 ; J. Voet, Ad Pand., xxiv., 2, 19 ; Lybreglits, Eeden. Vertoog, i., 12, 23. (A-) J. Brouwer, De Jure Conn., ii., 29, 11 ; Lybreglits, Eeden. Vertoog, i., 12, 19. (/) Lybreglits, Eeden. Vertoog, i., 12, 19. {Ill) J. Brouwer, Do Jui-e Conn., ii., 20, 10, who includes a number of other crimes of which the husbaud may be guilty and thus expose the wife to the risk of being punished as an accomplice; Fock. Andr., Annot. ad Grot., Introd., i., 5, 18, p. 14. («) Fock. Andr., Annot. ad Grot., Introd., i., 5, IS, p. 14; Het Cud Ned. B. E., ii., 196. 816 DIVORCE EOMAX-DUTCH LAW. husband to make his wife lead an immoral life (o). All these were grounds for which the judge, in his discretion, might grant sejDaration, and every case was decided on its own merits {<>). As regards the consequences of a separation, much difference of opinion prevailed among the authorities, (a) If the parties had made their own arrangements, the judge had merely to sanction them, although much was left to his discretion. The decision of the Court was published and was binding upon the parties and upon third persons until, if at all, reconciliation took place (j>). (b) If no private arrangements had been made, either of the parties was entitled to request the judge to pronounce, not only a sej^ara- tion from bed and board, but also a separatio hoiiorum. Upon tbe judgment being pronounced and publisbed, the separated sj^ouses proceeded to divide the community property — if they had been married under the system of community — and they ceased to be responsible any longer for each other's debts (q). The separatio a mmsd ct toro, of itself, did not affect the property of the community, or the system of community itself, nor the husband's marital power (r). If the judge did not pronounce otherwise, they remained as these had been previously ; but the judge had full power to deal with them at his discretion, and miglit take into consideration the claims of the petitioner, the respective interests of the parties, &c. (s). The judgment had to be published in order to be effectual against third parties. The husband remained obliged to maintain his wife, if she needed it and had not herself given cause for the separation. He had to pay to her her dowry, if any (t). {«) Fock. Aiulr., Het Oud Ned. Jur. Belg. Civ., iii., 295, not only tlie B. E., ii., 1!">. co/iivuoiio honvrivm came to an end, [l)) V. d. Linden, Koopmansh., i., but also marit/i Jura, rHra d admiids- 3, 9, p. 31. iratio ; A. v. Wesel, De Conn. Bon. (7) IIoll. Cons., iii. b., Cons. 2-12 Societ. Tract., ii., 4, 38 ei se(/., similarly ■in i'm. (Grotius). stated that, according to a decision of {r) J. Yoet, Ad Pand., xxiv., 2, 1(3; the Court at Utrecht, tlie miirital power Ijynkershoek, Ciupost. Jur. Priv., ii., came «7;soy»re to an end upon the sejia- 9; Schorer's Notes ad Grot., In trod., ration being decreed ; Schorer's Notes i.,5, 20; Lybreghts, Eeden. Vertoog, ad Grot., Introd., ii., 11, 17; Fock. i., 12, IS— 27;v. d. Keessel, Thes. Andr., Ilet Oud Ned. B. Pv., ii., 19S. .Sol., Thes. 90; v. d. Linden, Koop- (f) Lybreghts,Kedcn. Vertoog, i., 12, mansb., j). .'Jl. 24, 25 ; v. d. Keessel, Thes. Scl., {h) According to Arulzenius, In.st. Thos. 90. COLOXIES JUDICIAL SEPARATION. 8 1 7 The separation came to an end upon the reconcihation of tlie parties, which removed ipso jure all consequences of the separa- tion and restored the marriage to the same position as it would have had if no separation had ever taken place (a). Colonies. — Judicial Separation. — South Africa. — The same rules apply (h) as those under the general law. The grounds of separa- tion are : ill-treatment, cruelty, continuous quarrels and dissensions, habitual intemperance, serious assaults which render the continued living together of the sj)ouses intolerable or dangerous to the life of one or other of them (c). The consequences of separation are, as regards the persons, that the o])ligation to live together ceases ; as regards the marital property, if the Court do not pronounce a special decree, the relations between the parties remain unaltered, whether they con- sist of the system of community or an arrangement by ante-nuptial contract. The spouses are, however, no longer responsible for each other's liabilities (d). If the separation has been pronounced at the wife's request she can claim maintenance from her husband (alimony), unless her conduct was the cause of the separation order (e). A voluntary deed of separation — that is to say, an extra-judicial separation — only takes effect as between the spouses, and not as regards creditors. As regards the spouses, an agreement for separation which provides for the division of the community to which the innocent spouse would have been entitled, if a judicial decree had been obtained, is considered a legal and effectual contract (/). Such creditors will, however, be bound as have had notice of the deed of separation and its particulars previously to their entering into a contract w4th either of the spouses (g). In Ceylon the same rules apply (/<)• Separation a mensd et toro may be applied for "on any ground on which by the law a^^plicable " (to Ceylon) "such separation (a) V. d. Linden, Koopmansh.,p. 31. p. 421. (6) Maasdorp, Institutes of Cape ('/) Maasdorp, loc. clt., i., p. 77. Law, i., pp. 15 — 103; de Bruyn, (e) Ibid., 78. Opinions of Grotius ; Wessels, History. (/) Ibid., 77. (c) Maasdorp, Inst., i., p. 75, and (g) Ibid. cases quoted by him; Thelland v. (h) Pereira, Laws of Ceylon, ii., 140, Thelland (1909), S. A. L. J., xxvi., 141. M.L. 52 818 DIVORCE ROMAN-DUTCH LAW. may be granted " (i), but only as a subsidiary petition to a petition for divorce (/f). The separated wife has the status of an unmarried woman as regards property (/), contracts and torts (m). The Court may deal with the custody and maintenance of the children pending action (n) and after decree (o). In British Guiana the general rules apply. Divorce (p). — A divorce — that is to saj, dissolution of the marriage during the lifetime of the sj)ouses — could only be pronounced by the Court, and it could not be effected by mutual arrangement, though collusion was not absolutely excluded (q). A decree was only granted by the Court on proper grounds (r). The two main grounds were : (a) adultery ; (b) malicious desertion. Besides these, other grounds are mentioned by some authors, which were considered to form an extension of the princij^les on which these two grounds were based (s), viz., (c) unnatural crime, con- taining the principle of adultery ; (d) condemnation to death ; (e) imprisonment for life ; (f) banishment ; (g) long absence and subsequent re-marriage of the wife — all containing the princij^le of malicious desertion (t). (?) Civil Procedure Code, s. 608. (A) Pereii'a, Laws of Ceylon, ii., 139. (0 Civil Procedure Code, s. 609. (m) S. 610. (//) 8. 619. (o) S. 620. Ip) Politic. Ordin., April 1st, 1580, art. 18, and Zeeland, 1583, art. 33 ; Zeeland Ordinance of 1666, art. 17 ; Echtreglementvoor de Generaliteyts- landeii, 1656, art. 91 ; Grotius, Intro- duction, i., 5, 20, and note by Groene- wegen ; Schorer's Notes ad Grotlntrod., loc. cit.; Groenewegen, de Leg. Abr., Cod. v., n, and ix., 9 ; Van Leeuwen, E. IT. R., i., 15 ; Censura For., i., 1, 15 ; II. Brouwer, De Jure Conn., ii., 30 — 33, cap. ult. de Jure Divert, apud Batav. recept. ; J. Cos, EechtsgeLVerh., vii. ; J. Voot, Ad Pand., xxiv., 2, 1 — 14 ; Lybreghts, Eeden. Vertoog, i., 12, 1 — 17 ; V. Zurck, Codex Bat., v). These orders could be made by one and the same sentence, and both orders miglit be prayed for in the same petition (c). () Lybreghts, Eeden. Vertoog, i.. Theologians ; Van Leeuwen, E. H. E., 14, 15 ; Van Alphen, Papegaei, ii., p. 4. i., 15, 4 ; Lybreghts, Eeden. Vertoog, (c) IIoll. Cons., v., Cons. 48 in fin. 822 DIVORCE — ROMAN-DUTCH LAW. The action came to an end if the deserter returned and com- plied with the orders of the Court. If the other spouse refused to receive the deserter, it was the deserter's turn to petition for a divorce d). III. Other Grounds. — As ah'eady stated (dd), certain authorities who lived and wrote in the eighteenth century mention as other grounds for divorce besides these two : imprisonment for life ; sen- tence of death if the prisoner escaped, or his sentence was trans- muted into imprisonment for life ; perpetual banishment (e). Van der Keessel, in his Dictata, gives a number of decisions beginning with the year 1732. These divorces appear to have been granted by the States who, by virtue of their authority as the civil power, could create new grounds for divorce. In the works of authors who lived at an earlier period no mention is made of these grounds of divorce. Evidently they appear to be properly considered as an extension of " malicious desertion," as the main characteristic of them all is that the pur- pose of the marriage cannot be fulfilled, and that the wife is not bound to follow the husband into a place of punishment (J ) ; another ground of divorce was long absence and subsequent re-marriage of the spouse who remained behind. In ancient times presumption of death was unknown, partly because it was not required, except that a Longobardian law of 720 ig) provided that the death could be presumed of a sailor who had been absent for three years, and his wife could obtain a licence from the King to marry again. But this provision ceased to be effective after the capitida Lotliarii had abolished all grounds for divorce except adultery (li). In the Middle Ages presumption of death was unknown. At a later period the right of the heirs of an absentee to succeed to his property was again recognised, and presumption of his death was admitted. (rf) J. Voot, Ad I'and., xxiv., 2, 11. den, i., Cons. ;)2 ; Fock. Andr., Annot. {(Id) See p. 818, a)ite. tid Grot. Introd., ii., j). 1 5 ; Het Oud (e) V. d. Keossol, Thes. Sel., Thes. Ned. B. R., ii., p. 200. 88, 89; J. J. van Ilasselt, Regtsgel. (/) J. Cos, Eegtsgel. Yerh., \ii., briovcn IJOO, p. 275 ; Hchoniakor, 10; J. v. d. Linden, loc. cit. Cons, ct Resp. Juris., iii., Cons. 90, {;/) Lox Lniti)randi, 19, par. 1. par. ;50 ; v. d. Linden, Koopmansh., i., (//) Fock. Andr., Hct Oud Nod. .■J, 9, p. .'{] ; Vorsaunding vau Oerrj's- ^^. R., ii., p. 25.5. EFB'ECT OF DIVORCE. 823 At the time of the Datch Repuhhc, the wife was allowed to enter into a now marriage on account of the presumed death of her husband after she had remained fiv^e years without any news from him. She liad to obtain authority for such marriage from the magistrate. In Holland, the States could grant this authority, though a special ordinance to that effect did not exist (i). Proof of the husband's presumed death was not always insisted upon, and his death was not unfrequently presumed when the man was still alive and afterwards appeared. The consequences of a conflict of interests were not considered very serious. The cases were decided according to circumstances, and as it suited the parties best (h). Refusal to comply with marriage duties was considered malicious desertion (/). Effect of Divorce. — Through divorce marriage came to an end. The spouses were each of them placed in the same position as they were in previo;isly to their marriage (/^O- Both parties were allowed to marry again (n), except that the spouse who had been guilty of adultery was not allowed to marry the person with whom adultery had been committed (o). Even persons who had been married to each other could not be joined together again except by going through the ceremony of marriage a second time, and a child born in the meantime of parents who had previously been divorced was considered illegitimate (j)). The proprietary relation created by the marriage ceased to exist, the community of goods came to an end, and the common property was divided between the spouses, either according to law, or according to the provisions of an ante-nuptial contract (<]'). The innocent petitioner, if successful, was entitled to maintenance from the guilty party, if (i) Lybj-eglits, Redeu. Vertoog, i., ii., Cons. 159(1661); Schorer's Notes 12, 17,pp. 177 e^ seg. ; J. Cos, Eegtsgel. ad Grot. lutrod., i., 5, 18; Bynkers- Verh., vii.,pp. 244 e^seg. ; Fock. Andr., hoek, Quaesfc. Jur. Priv., ii., 10; Het Oud Ned. B. E., ii., 256 et seq. Lybreght s, lleden. Vertoog, ii., 12, 12 ; [Ii] Fock. Andr., llet Oud Ned. J. A'oet, Ad Pand., xxiv., 2, 8. B. E., ii., 200. ((>) Placaat HoU., March 18th, (/) J. Cos, Eegtsgel. Verh, vii., 17, 1054; Echtreglemeut, par. 83 ; Placaat 18. HolL, July 18th, 1674; Bynkershoek, {m) Grotuis, Introd., ii., 21, II. Qurest. Jur. Priv., ii., 10. (n) Holl. Cons., i.. Cons. 307 (by [p] J. Voet, Ad Pand., xxiv., 2, 5. Groenewegen in 1644) ; Utrecht, Cons. [q) Grotius, Introd., ii., 11, 13 pr. 824 DIVORCE ROMAN-DUTCH LAW. the innocent party were impecunious and the guilty one could afford to make such payment (r). When a division of the marriage property was made, the party at whose petition the divorce was pronounced, was entitled to demand any pecuniary advantages which the law allowed, e.(j., the forfeiture of property on account of adultery which remained in force independently of the divorce. Forfeiture of property was a legal provision attached by law to the fact of adultery when proved, and granted to the offended party independently of the remedy of divorce. There are extant sentences to that effect of the Supreme Court of Holland in the years 1545 and 1609 (s). In 1545, it was decided that a husband who had committed adultery, forfeited all property which he had brought to the marriage, in favour of his wife. In 1609, the Supreme Court decided that a wife who had committed adultery forfeited in favour of her husband all profits and shares to which she was entitled in the property of her husband, either by community or marriage articles (t). As a general rule it may be stated that the guilty part}' forfeited to the successful petitioner all that part of the marriage property which he or she would have received from the other party by community of property or by marriage articles (a). The wife loses her right to the dos and dowry and even her claim for maintenance against her husband (/>). This forfeiture had to be prayed for from the Court and obtained at the same time that the divorce was pronounced. It could not be obtained afterwards by a separate action (c). The custody of the children was, generally speaking, given to the innocent party, in order that they might be educated by that party, but the guilty spouse had, if possiide, to contribute to their educa- tion and maintenance, in accordance with the Judge's decision (c7). (/•) J. Voet, Ad Pand., xxv., Ij, .S. Iutro(l.,ii., 12, 7 ; lloll. Cons., i., Cous. («) IIoll. Cons., vi., p. 321, 334 ; Bj'nkershoek, Qiuost. Juv. Priv., {t) I hill., iii., Ajjp., p. 27; vi., ii., S ; J. Voet, Ad Pand., xxiv., 3, 23. p. 321 ; Lybroght.s, Rcden. Ycrtoog, (r) v. d. Berg, Nederl. Advysb., i.. i., 12, .j. Cons, lis, p. 298. (a) van den Berg, Nedorl. Advysb., (ybreghts, Eeden. Yertoog, (//) Oroenewcgen's Xoto ad Grot. i., 12, (i. COLONIES — DIVORCE. 825 'i'his was a matter to be decided bj^ the Court, and in deciding the Court had a very extensive power and full discretion as to how to exercise it in the interest of the children, it being borne in mind that the Court was entitled in the interest of the children to deviate from the rule that the custody of them should be given to the innocent spouse, and that it was necessary for the petitioner to ask for the custody of the children to be granted to him (c). Colonies. — Divorce (/). — South Africa. — The Courts do not possess jurisdiction to pronounce a decree of divorce unless the matrimonial domicil of the parties is in South Africa, or the parties were married in South Africa. The Court may, however, grant a judicial separation if the wife is resident within its jurisdiction, though they cannot order a division of immovable property (ji). The grounds of divorce are : (a) Adultery ; and the committing of an unnatural crime is tantamount to adultery, (b) Malicious deser- tion : and condemnation to death,- if commuted to imprisonment, or avoided by escaj^e ; and lifelong imprisonment, amount to malicious desertion. I. Adultery (/;). — A petitioner can be deprived of his or her rights to a divorce on the following grounds, viz. : (a) adultery on the part of the petitioner (?) ; (b) collusion between the parties {k). The Court is entitled to make investigations of its own accord and to inquire into the conduct of both parties as well as into their motive and the good faith of the proceedings ; (c) condonation (l) ; (d) connivance (m) ; e.g., if the petitioner by his acts and conduct has either knowingly brought about, or conduced to, the adulter}- of his wile, or if he has so neglected and exjDosed her to temptation, as, under the circumstances of the case, he ought to have foreseen would, if the opportunity offered, terminate in her fall. Proof of the adulter}^ must be given to the satisfaction of the Court, either by direct or circumstantial evidence (birth of a child, (e) S. van Leeuwen, Ceus. For., i., 1, (. S2. DutcliLaw; Roos-Eeitz, Principles of (/.) Ibid., -p. 8'>i. Eoman-Dutch Law; Wessels, His- (/) Ihi'. King (182;J), Earn. 107. 1820— 33, p. 60; Eatnaviia v. Enso- (k) D. C. Colombo, 55353 (1871), hamy (1885), 7 S. C. C. IKi. Vanderstraaten, 237. {h) King V. King, iihi supra; Civ. (/) See Dias v. Philips (1882), 5 Proc. Code, ss. 600, 602. Eesuinption or S. C. C. 36 ; Wijesurendra v. Bartholo- continuance of cohabitation isaneces- mens (1884), 6 S. C. C. 141. sary element of condonation : s. 002. (?/?) Civ. Proc. Code, ss. 596 et seq. 828 DIVOPvCE ROMAN-DUTCH LAW. to discover it; (c) the adulterer is dead(?0. Damages may be claimed against a co-respondent in the plaint (/?). A decree nisi is made in the first instance ; the decree absolute follows three months later (o). The practice is the same as in England with regard to alimony pendente lite {p), permanent alimony {q), settlement of property (r), custody and maintenance of children (6-). Parties may marry again Avhen the decree nisi has been made absolute or confirmed on appeal (0- Divorce proceedings cannot be commenced by a curator ad litem on liehalf of a lunatic husband (ii). Muhammadan Divorces in Ceylon.- — These are governed by the Code of August 5th, 1806 {x). The fact that a Muhammadan has taken a concubine does not justify his wife in refusing to cohabit with him unless he proposes that she do so in the same house in which he is keeping the concubine (,(/). Restitution of Conjugal Rights. — It has been held that suits for restitution of conjugal rights are not maintainable in Ceylon (c). Nullity of Marriage. — The District Courts have original jurisdic- tion to decree nullity " on any ground which renders the marriage contract between the parties void by the law applicable to the Colony " ('0- The parties may re-marry on the expiry of three months from the decree of nullity or its confirmation on appeal (Jb), British Guiana. — The general rules apply () y. 611. The English rule by (h) S. 625. wliioh, in proceedings for divorce or (,) Andres r. Bastiana (18()2), Bam. judicial separation, the husband is 18(50—62, p. l.'J.'). generally liable for his wife's costs is ((). Countries, p. 54. (6) Ihid. (/) "Expos6 des motifs" of the (r) Demolombe, iv., p. 484, s. 390. law of April 18th, 1886, Sirey, Lois {d) Baudry-Lacan., iii., p. 36. Annotees, 1886, 51. (e) Soo r. P. Mi.scellaneous, No. 2 EFFECTS OF DIVORCE. 833 The preliminary stages in proceedings in divorce are first the formula- tion of the petition before the President of the Tribunal or com- petent Judge ig) and the csmi dc conciUafion (li). If conciliation fails the case is tried on the merits (/'), the respondent being entitled to bring counter-charges (/). The Court may sit with closed doors and the press is forbidden to publish the proceedings (i), except when the ground on which the divorce is claimed is the condemna- tion of the respondent to an afflictive or infamous punishment {k). The Tribunal, although the case is proved, may adjourn the pro- ceedings for a period of not more than six months to give time for possible reconciliation (/). The judgment pronouncing a divorce cannot be acquiesced in so as to prevent an appeal (//«). An appeal lies as in civil cases (n). The decree must be transcribed on the register of civil status (o), and, according to the weight of autho- rity ( j)) , it is from the date of this transcription that the marriage is dissolved. In default of transcription within a prescribed delay the divorce is null (q). In the course of the proceedings provisional measures may be sanctioned allowing the wife a separate residence (r), regulating the custody of the children (s), and securing the wife's alimony (^). Conservatory measures may also be taken for the protection of the property of the spouses (u). The right of obtaining a divorce is barred (a) by reconciliation (x) ; (b) by the death of one of the spouses before transcription of the decree {x) ; (c) by thirty years' prescription (ij) . Effects of Divorce. — (i.) As regards the Person of the Spouses. — (a) Each spouse resumes the use of his (k) or her own name (b) ; {(j) Art. 234. (if) Art. 23S. Alimony may apjva- (A) Art. 238. reutly also be allowed to the liusband (/) Art. 239. petitioner : ibid. (k) Art. 232. . (u) Ai'ts. 242, 243. (/) Art. 246. (r) Art. 244. See I. r. I. (1902), (?n) Art. 249. See Collinet v. Sirey, 1903, i., 477. Collinet(1903),Xancy, Sirey, 1903, ii., (,v) Art. 2262. Baudry-Lacan., iii., 190. As to decrees by default, see art. p. 150, s. 239. 247. (") In certain parts of France and (//) See art. 248. Switzerland it is customary for the {(>) Arts. 251, 252. husband to add to his own name that {l>) Baudry-Lacan.,iii.,p. 153,s. 245. of his wife. (7) Art. 252. (/') Law of February 6th, 1893 (new (r) Art. 236. - art. 299). {s) Arts. 238, 240. M.L. 58 834 DIYOPX'E LAW OF FRANCE. (b) the matrimonial rights and duties end ; (c) either party may re-marry. The spouses may re-marry each other, a fresh celebration being necessary, unless in the interval either party has contracted a second marriage followed by a second divorce (c). In such a re-marriage the spouses cannot adopt a matrimonial regime different from that which originally regulated their union (c). Once re-united they cannot petition for divorce again on any other ground than that of the condemnation of either to a peine qtfiictive et infamante since their re-union (c). The divorced wife may re-marry as soon as the judgment or decree granting the divorce has been entered on the register of marriages, provided that three hundred days shall have elapsed since the first interlocutory judgment otherwise than by default, or judgment on the merits was pronounced (See Sirey, Lois Annot., 1902, p. 38o, {s) Baudry-Lacan., iii., p. 193,s.'296. 53—2 836 DIVORCE LAW OF FRANCE. before mentioned of July 27th, 1884, April 18th, 1886. and February 6th, 1893. The suit must be commenced, proceeded in, and adjudicated upon in the same manner as any other civil action (t), but in no case is a suit for separation to be sustained on the ground of mutual consent (u). AYhenever a separation from bed and board has con- tinued for three years the judgment mai/ be converted into a judgment of divorce on the demand of either of the spouses (x). By a law of June 7th, 1908, the grant of this demand is obligatory and not facultative. Effects of Judicial Separation. — (a) Separation from bed and board in all cases implies separation in goods (y) ; (b) the judg- ment pronouncing separation or a posterior judgment may prohibit the wife from bearing or authorise her not to bear her husband's name {z) ; where the husband has joined to his own name the name of his wife, the latter may equally claim that her husband should not be permitted to bear her name (z) ; (c) judicial separa- tion restores to the wife her full civil capacity, i.e., it dispenses her from the necessity of obtaining for any act the authorisation of her husband (a) ; (d) w'here the spouses become reconciled three alternatives are open to the wife as regards her civil capacity {b) : (i.) She may resume the common life purely and siu:iply. Here she passes, as regards her husband, again under the common law% but retains, as regards third parties, her civil capacity, unless they were aware of the resumption of the common life at the time of dealing with her. (ii.) The spouses may by common consent sub- stitute for their original matrimonial regime separation of goods pure and simple. Here the wife has the free administration of her property (<•), and may dispose of and alienate movables but cannot alienate immovables without marital or judicial authorisa- tion. The reconciliation must be evidenced by a notarial act {() But art.s. 230 — 2-44, Code Civil, was made to obviate the delay and are applicable : art, 307; law of April cost of obtaiiiiug such authorisation, 18th, 1886. and also to jiut a stop to husbands ()«) Art. 307. trading on their wives' need for it : (x) Art. 310, as defined by laws of ]']xpose des motifs, Sirey, Lois Anuot., Jvdy 27th, lSS-1, and April istli, ISSO. 18i)3, 473. (*/) Art. 311. (/-) ]}audry-Lacan.,iii.,p. L>M,s.323; (z) Art. 311 (law of February 6th, and see Code Civil, art. .'511 (law of 1893). J-ebruary (itli, 185)3). {(t) Ihi'l. This change in the law (c) See art. 144!). LAW OF BELC4IUM. 837 published as the law directs, (iii.) The spouses may re-establish their orioinal matrimonial rajime on conforming with the conditions and prescriptions of art. 1451. Res Judicata. — (i.) A decree of divorce or judicial separation has the force of chose juf/ce, and in view of the fact that the parties by whom proceedings for divorce or separation can be brought are limitatively defined ((/), it has such force erga omiie.s (e). (ii.) The spouse who has failed in a suit for separation cannot sue for divorce on the same facts (/). (iii.) Whether the converse holds good is doubtful {(f). (iv). There is also controversy as to whether a subsidiary claim for judicial separation can be combined with a principal claim for divorce {h). Voluntary Separation. — The law attaches no value to a voluntary (i) separation, and agreements regulating the conditions of such separa- tion, although not uncommon, cannot be enforced in the Courts (./). Belgium. — In Belgium the rules of the French Civil Code of 1804 are still in force. Both divorce and separation cle corps are admitted, and that not only pour causes determinees, but by mutual consent. The grounds for such divorce or separation are exces, sevices, injures graves, adultery, and certain criminal condemnations. Separation may always be converted into divorce at the end of three years, but the right of demanding such conversion is denied to a wife against whom decree of separation has been pronounced on the ground of adultery. Otherwise effect must be given to the claim unless the original petitioner consents at once to bring the separation to an end (/i). The procedure is modified by a law of February 11th, 1907 (/), {d) See Code Civil, arts. 229 et svq., 1888, i., 374. and 307. (/O Baudiy-Lacan.,iii.,p. 243, s. 358, (e) Baudi'y-Lacan.,iiiA,p. 242, s.3.J4. and authorities collected in n. 1. (/) Ihid., s. 35.5. AYliere the facts (') Cass., January 27th, 1874, Sirey, arise subsequently there is not the 74, i., 214 ; Trib. Seine, May 15th, same cause : see urt. 1351. Query as 1895 (Gaz. Trib., September 9th, 1895). to the result if the facts were not {j) Cass., June 14th, 1882, Sirey, subsequent but had not been founded 82, i., 42]. on in the former proceedings : Baudry- (/I) Weiss, iii., pp. 578 et seq. ; and Lacun., iii., p. 243, s. 358. see Baudrj'-Lacantinei-ie, iii., pp. 245 et (f/) For the affirmative, see Delorme seq.; Dalloz, Suppl., tit. Divorce, arts. V. Delorme (1897), Amiens, Sirey, 17 e^ seq. 1898, ii., 65. For the negative, see [l) Ann. de Leg., &c., 190G, 296. Decourt v. Decourt (1888), Cass. Sirey, 838 DIVORCE CONTINENTAL SYSTEMS. Divorce by Mutual Consent. — For this the following conditions are necessary : — 1, The hushand must not be under twenty-five years of age, the wife not under twenty-one years (ni). 2. Parties must have been married at least for two years (n) and not more than twenty years (o). The wife must not be over forty- five years of age. The parties have also to obtain the consent of their father and mother, and if these are deceased they require the consent of their grandfathers and grandmothers. They also have to make an authentic inventory of all their properties, and one-half of such property will from that moment belong to their children. Parties wishing to divorce by mutual consent have to agree between themselves on the following points : — (a) "Whether the husband or the wife will have possession of the children. (b) "SYhere the wife will have her residence during the proceedings. (c) What alimony the husband is to pay to his wife. It is not until all these conditions are fulfilled that the parties can request the President of the Court to receive their application. The application must be repeated at intervals of three months during one year. Upon the Public Prosecutor stating that every requirement of law has been carried out, the Court can then allow the divorce to take place. Parties divorced by mutual consent are not allowed to re-marry (except between themselves) until three years have elapsed. SECTION III. Other Continental Systems. Comparative Legislation (7)). — The other principal Continental sj'stems in regard to divorce may be conveniently grouped under the following heads : — A. Systems recognising only judicial separation. B. Systems recognising only divorce. C. Systems recognising both divorce and judicial separation. (w) Art. 275, Cod. Civil. cited in the text, see the Pailiamentary (yi) Art. 270. Reports on Divorce Laws, 1S57 (C. (o) Art. 277. 12, Februi.ry 12th, 18-)7) ; 1894 (C. 0') In addition to other authorities 144, 145) ; and 1903 (Cd. 14GS). AUSTRIA — SPAIN — ITALY. 839 A. Systems recognising only Judicial Separation.— To this class belong the x\ustrian, the Spanish, the Italian, and the Portuguese systems, owing to the predominance of the Roman Catholic Church. Austria. — In Austria (q), judicial separation on prescribed grounds, or by mutual consent only, is open to spouses of whom one was a Eoman Catholic at the time of the marriage. The causes of separa- tion are adulter}'', a crime committed by one spouse, unjustifiable desertion, criminal attempts, serires, injures (jraves ; dissipation by one spouse of the fortune of the other ; every injury to the morality of the family ; inveterate and contagious corporal defects. Spouses who are not Roman Catholic may obtain divorce in con- formity with their own religious law by mutual consent, or for the following causes : Adultery, condemnation to seclusion for five years at least, or to any higher penalty ; abandonment of the conjugal roof, attempts, sevices, injures e/mres, invincible aversion, manifested by several separations (?•)• Jews in Austria may be divorced by mutual consent, or for adultery of the wife (s). Spain. — In Spain, only the ecclesiastical authorities can deal with canonical marriages {t) ; divorce a vinculo is not recognised ; but such marriages may be annulled or judicial separation (divorcio) may be pronounced. In the case of civil marriages divorce a vinculo is equally unknown, but judicial separation may be decreed on the following grounds (a) : (a) Adultery by the wife or, if accompanied by aggravating circumstances, by the husband ; (b) cruelty or injures (irnves ,- (c) violence used by the husband towards the wife to oblige her to change her religion ; (d) a proposal by the husband to cause his wife to become a prostitute ; (e) attempt by husband or wife to corrupt their children, or prostitute their daughters, or connivance at such corruption or prostitution ; (f) condemnation of one spouse to chains or seclusipn. In every case, whether of canonical or of civil marriage, it is the civil law that regulates the consequences of judicial separation. Italy. — The ItaHan Civil Code (b), like the Spanish, recognises no divorce, but allows judicial separation, either by mutual consent, if homologated by the tribunal, or for the following reasons : {q) Civil Code of 1811, arts. Ill et (t) Civil Code, arts. 75, 80—82; seij. P- 168, aiitt'. {■)•) Civil Code, art. 115. (a) Arts. 67, 104 et seq. {s) Arts. 13:3— l;J5. {l>) Arts. 148-158. 840 DIVORCE — CONTINENTAL SYSTEMS. (a) Adultery ; (b) wilful desertion ; (c) exces, sevices, threats, injures graves ; (d) condemnation to a criminal punishment, posterior to marriage, or unknown by the complaining spouse at the time of marriage; (e) as regards the wife, if the husband does not take up a fixed abode, or if, having the means to do so, he refuses to provide one suitable to his position (c). Portugal. — The Portuguese Code (d) recognises only judicial separation and tbat for the following grounds : (a) Adultery of the wife or (if accompanied by aggravating circumstances) of the hus- band ; (b) condemnation of one spouse or the other to perpetual punishment ; (c) sevices, injures graves. Judicial separation alone is also recognised in the Argentine Republic (e), Brazil (/), Chili (f/), and Mexico (A). In all these adultery, cruelty and desertion, and in Brazil and Mexico, after two years' marriage, mutual consent, are causes for separation. B. Systems recognising only Divorce. Kussia(j). — In Bussia dissolution of marriage is onl}'' allowed in a restricted number of cases, and divorce is difficult to obtain except for Jews. The rules by which cases of divorce are decided in Eussia are provided for in the Ordinances of each Church, which are embodied in the General Code of Laws, and all such cases come under the cognisance of the Ecclesiastical or Consistorial Courts of the several religious denominations existing in Eussia, no secular tribunal having jurisdiction in these matters. Orthodox Chnrcli. — Members of the Orthodox Church may seek divorce on the grounds of : (a) Adultery of either husband or wife ; (b) physical impotence (the suit must be brought not before three years after the celebration of the marriage, and tbe impotence must be proved to have existed already before the marriage) ; (c) sentence to loss of civil rights, involving deportation (to the dissolution of marriage, however, on this ground it is necessary that the other party should refuse to follow the condemned party into deportation, (c) Art, 152. between the dissevered couple are ((/) Arts. 1204 d se(j. treated as if the marriage had been (e) Civil Code, art. 198. really dissolved : Pari. Pap., C. 144, (/) Law of May 24th, 1890. The 14o, June 14th, 1894, p. 48. remedy allowed by this law does not («/) Civil Code, arts. 12;>, 108. dissolve the marriage tie, but goes (//) C. ( '. art. -20 ; I'arl. IJep. of somewhat beyond judicial separation, 1SU4, p. 91. iniisiiiuch as all questions of projjcrty (/) Purl. Pej). of 1894, jip. 129, l."iO. RUSSIA AND ROUMANIA. 841 and in that case either of the parties has the right to demand dissohition ; and should the hushand or wife, as tlie ease may be, follow the condemned into exile, the marriage is not dissolved) ; (d) desertion of husband or wife during a period of live years if their whereabouts are not known. Suits in divorce are adjudicated by the Ecclesiastical Courts, namely, by the Consistorial Court of the Bishopric in which the husband to the suit resides, and the final confirmation of the divorce pronounced by such Court lies with the Holy Synod at St. Petersburg. The petition for divorce is rejected if the party which filed the petition is found to be guilty of adultery ; or if that party at the same time or previously had started against the guilty party a criminal prosecution on that ground. After the dissolution of a marriage both parties are allowed to contract new marriages, except in cases in which one of them is condemned to celibacy for bigamy. How^ever, the party found guilty of adultery is by law forbidden to contract a new marriage for a certain period of time. Lutheran Churcli. — ]\[embers of this body may seek divorce in their Consistorial Courts on the grounds of adultery, concealed loss of virginity of the wife before marriage, attempt to poison, five years' desertion, incompetence and repugnance to marital intercourse, refusal to fulfil conjugal duties, incurable infectious diseases, mad- ness, depravity of life, cruelty and ofl'ensive treatment, attempted dishonour, unnatural propensities, grave crimes involving sentence of death, or a punishment in substitution, or penal exile. Together with the sentence of divorce, the Court decides as to the custody of the children. Russian Jews. — Jews are allowed to divorce each other by mutual consent with permission of their Ilabbi. Cases of divorce among Kussian Jews are decided Ijy a Eabbi or his assistant, with a right of appeal to the Rabbinical Commission of the Ministry of the Interior. Miiliammadans. — Muhammadan marriages are dissolvable by Mollahs, against whose judgments in such cases an ai3peal lies to the higher Muhammadan ecclesiastical authorities at St. Petersburg, or to the Ministry of the Interior. In Poland divorce is not recognised, but judicial separation, limited or unlimited, exists, and may be efi'ected by mutual consent. Roumania.^ — The Civil Code of Pioumania (/.) does not allow (/,) Arts. 211—21.5, cited l)y Weiss, iii. .382. 842 DIVORCE — CONTINENTAL SYSTE:M.s. judicial separation, but recognises divorce either on prescribed grounds or by mutual consent. The grounds of divorce are : (a) Adultery ; (b) execs, seliees and injures graces ; (c) condemnation of either spouse to hard labour or seclusion ; (d) the fact that one spouse has attempted the life of the other, or, having had know- ledge that such an attempt was meditated 1)}^ a third party, has not at once endeavoured to frustrate it. Divorce by mutual consent can only take place when the husband has completed his twenty-fifth, and the wife her twenty-first, year, and when at least a year has passed since the celebration of the marriage. It cannot be admitted after the parties have been married for twenty years, or the wife is more than forty-five years of age. Servia(/). — All matrimonial causes are tried by the Spiritual Court. Divorce is granted for the following reasons : (1) Proved adultery ; (2) attempt on the life of the partner, or participation in cruel or murderous measures with that object ; (3) treason ; (4) abjuration of the Christian faith, and, according to the interi^reta- tion of the canons of the Church by Bishop Xicanor (m), secession from the Orthodox Church to any other branch of the Christian faith would be a ground of divorce ; (5) the frequenting by the wife, without her husband's consent, of suspicious places of resort ; (6) unproved charges by the husband of infidelity on the part of the wife ; (7) incitement b}- the husband of his wife to immorality ; (8) sentence of either spouse to more than seven years' imprisonment or to hard labour ; (9) desertion during seven years. Under the Civil Code, the wife may obtain a divorce after three years' desertion, where the husband has left the country without the laiowledge or permission of the Government and cannot be traced ; and after four years, on proof that the desertion is wilful. Greece (»)• — Separation a inctiHn et loro is not permitted by the Greek law. The grounds of divorce are established in No. 117 of the Novels of Justinian with some unimportant amendments made by the treatise of Harmenopoulos(o). 1. Reasons for Divorce on the Husband's Side. — (a) If the wife has concealed from him a conspiracy against the King of which she was cognisant. If, however, the husband having known this, keeps silent, the woman may denounce the crime th]"ougli any person, and (/) Piiil. Eqi. of 1S!)4, ])]). 1:5.5, l.'JG. (/,) rail. ]^ep. of ISiH, p]i. 77, 80. (///) Edition of iSSfJ, p. 17. (o) Law ol l''(l.niarv I'.'inl, lS;jj. GREECE — PROCEDURE. 843 the husband cannot claim her silence to himself as a ground for divorce ; (b) adultery ; (c) attempt against the life of the husl^and on the wife's part, or conceahnent of such intended attempt by others ; (d) attendance at banquets or baths, together with men, against the husband's will ; (e) passing the night away from her husband's house without his consent, unless either at the house of her parents or unless she has been turned out by her husband and has had no place to go to ; (f) attending theatres, races, or shooting expeditions against the will or without the knowledge of the husband. 2. Reasons for Divorce on the Wife's Side.— (a) If the husband con- spires against the King or does not denounce such a conspiracy if known to him ; (b) attempt by the husband against the wife's life or his failure to inform her of an intended attempt by others, or to have recourse to the law with a view to bringing the criminals to justice ; (c) if he tries to induce her to commit adultery ; (d) if he denounces her falsely for adultery ; (e) if he has intercourse with another woman in the same house or town, notwithstanding the advice of his relatives ; (f) if he is convicted of adultery with a married woman : (g) if he has entered a monastery. Divorce by mutual consent is unknown to the Greek law, but, in the absence of any check upon collusion undefended actions for divorce often amount to the same thing. Some of the more trivial grounds above stated are, as far as possible, discouraged by the Courts. Penalties. — By the 117th, 127th, and 134th Novels various penalties are enacted if divorce be asked and granted, owing to the fault of the person against whom it is asked — particularly in the case of the woman, who, if divorce is granted on the ground of adultery committed by her, loses both her dowry and a great portion of her own private property. The provisions above-mentioned have been applied by the Greek Courts on several occasions, but latterly the opinion has prevailed that such penalties have been abolished by the penal law, and therefore, they are not applied. Damages may, however, be claimed. Procedure and Co-operation of Ecclesiastical Authority. — The party desiring a divorce addresses a petition in writing to the Bishop, who thereupon summons both parties before him with a view to their reconciliation. If after three months all his efforts to bring about a reconciliation fail, the Bishop makes a report to that effect to the Civil 844 DIVORCE CONTINENTAL SYSTEMS. Tribunal of First Instance. Until it has received the Bishop's report, the Tribunal cannot entertain a petition for divorce. When the Tribunal declares the marriage dissolved, and its decision is finally and irrevocably pronounced, the Procureur du Eoi sends the decree to the ecclesiastical authority, in order that the spiritual dissolution of the marriage may also be pronounced. Ionian Islands. — Alter the union of the Ionian Islands with Greece the laws of Greece became obligatory in the Ionian Islands as enacted by the law of January 20th, 1866. The above- mentioned rules as to divorces prevail in the Ionian Islands. C Systems recognising hoth Divorce and Judicial Separation. — Of these systems, which are found in countries where the law on this subject is modern, some, like the English and Scotch, leave the choice of the remedy (assuming the grounds for it to exist) to the parties themselves. Germany. — (A) Divorce. — (1) Grounds of Divorce. — Either of the spousus is entitled to a divorce a liiiculo on one of the following grounds : (a) If the respondent has been guilty : (a) of adultery, bigamy, or sodomy (p) ; (/3) of any attempt on petitioner's life {q) ; (y) of wilful desertion (such wilful desertion is deemed to exist in the case of wilful disobedience to an order for the restitution of conjugal rights continuing for a period of a year, or in the case of wilful absence for a period of a year under circumstances under which it is impossible to serve any process) (r). (b) If owing to gross breaches of marital duty or to acts of cruelty or dishonour- able or immoral conduct on the part of the respondent the relations between the spouses have been disturbed to such an extent that the petitioner cannot reasonably be expected to continue them (*;). (c) If the respondent (while married to the petitioner) has for a period of not less than three years been afflicted with mental disease of a nature so severe that the intellectual ties between the spouses have become severed, and if, having regard to the nature of the disease, all hope of renewal of such ties seems excluded (0- The riglit to obtain a divorce on any of the gi'ounds mentioned under (a) and (b) is lost by condonation ; an ofience belonging to the class descril)ed under (a) (a) is not a sufflcient ground for obtaining (/>) fj'Tiiian Civil Code, s. l.jG.J. (,s) Ilu'il., s. 1.')<;.S. (y) Ihl'l., s. loOd. [!} Ibid., s. loiii). (r) Ihi'i., s. I :»(;:. GERMANY. 845 a divorce if it was committed with the petitioner's connivance (»)• The fact that the petitioner was himself guilty of one of the offences in question does not har his right. (2) Rules as to Time. — Tlie right to obtain a divorce on one of the grounds mentioned under (a) and (b) is lost unless the proceedings are instituted within six months from the date at which the offence giving rise thereto became known to the petitioner. No proceedings can be taken after the lapse of ten years from tlie date of the commission of the offence. The time does not run while the spouses are living apart from one another (r) . (3) Finding as to Guilt of Parties. — If a decree is granted on one of the grounds mentioned under (a) and (b) the decree must mention that the divorce was caused by the respondent's fault, but where the petitioner himself was guilty of a matrimonial offence and such offence has been pleaded by the respondent, either by means of a cross-petition or by means of a defence to the petition, the decree must contain a declaration as to the fault of both parties (w). (4) Elfects of Divorce. — A divorce decree under German law becomes absolute automatically on the day on which it ceases to be appealable (x). An absolute divorce decree has the following effects — (a) Freedom to Re-marry. — The petitioner as well as the respon- dent is free to re-marry, but this rule is subject to the following exceptions : (1) If the adultery of one of the parties was a ground on which the divorce was granted, such party cannot contract a valid marriage with the person with whom the adultery was committed, unless dispensation is obtained from the competent authority (ij) ; (2) a divorced wife is not allowed to marry before the expiration of a period of ten months running from the date at which the decree becomes absolute, unless she has in the meantime given birth to a child or has obtained dispensation from the competent authority {z). The last-mentioned prohibition is merely in the nature of a " hindering impediment " (). (c) Mutual Rights of Divorced Spouses as to Property and Maintenance. — As the divorce dissolves the marriage, it follows as a matter of course that in the case of the spouses living under the statutory regime (c) the husband's rights of usufruct and management cease ipso facto, and that in the case of the spouses living under any rn/iiiw of community of goods the community is dissolved ipso facto by the divorce of the spouses. In the last- mentioned case an innocent sjjouse as well as a spouse whose mental disease has been the ground of divorce, has certain advan- tages on the division of the common fund(//). In addition to this an innocent spouse may claim from the spouse declared to have been the exclusively guilty party, a restitution of all the gifts made during the marriage or in contemplation of the marriage (e). After divorce the guilty spouse is lial)le to suj^ply the other spouse with suitable maintenance so far as he or she cannot maintain themselves (/). (d) Rights as to Care and Custody of Children. — If the marriage is p. VM) et sn/. to the inaiiitenance of the children of {(I) German Civil Code, ss. 117s, divorced spouses, see German C. C, 1549. s. lo.So. (e) IbuL, .s. 1584. ( by muiual consent may be decreed if, in the oi)inion of the tribunal, the contnuiation of the common life is incompatible with the nature of marriage (/). Divorce jiouv cause determinee may be applied for by husband or wife (./) See ante, chaps, v.. vi. (/) Art. 45. (/.-) Alts. 4:5—17. SWITZERLAND. 849 on the grounds of : (a) Adultery, provided that not more than six months have elapsed since the injured spouse had knowledge of the offence ; (b) attempt by one spouse on the life of the other, sevices (scJucere MissltandliLugen) or injures graves {tiefe Ehrenkrdnkungen) {m) ; (c) condemnation to a peine infamante (entehrende Strafe) (n) ; (d) malicious desertion which has lasted for two years, provided that a judicial citation fixing a delay of six months for return has proved ineffectual ; (e) insanity lasting for three years and declared incurable. In the case of divorce pour cause determinee, the guilty spouse cannot re-marry till the expiry of a year from the decree, and this delay may be extended to three years by the judgment of the Court. Where none of the prescribed causes for divorce exist, but the circumstances show that the conjugal tie has been gravely injured, the Courts may nevertheless make a decree of divorce (o) or judicial separation (p). A decree of judicial separation may not be pronounced for more than two years ; if during that period there is no reconciliation between the spouses, the application for divorce may be renewed, and the Court may then deal with the matter according to its discretion. The ulterior effects of divorce or judicial separation are determined by the laws of the canton to the jurisdiction of which the husl)and is subject, but the Court which makes the decree of divorce may, at the same time, decide such questions ex olficio or upon the application of the parties (q). As from January 1st, 1912, this law will be replaced by the Federal Civil Code, arts. 137 — 158. What has been above called divorce by mutual consent (r) will disappear, and the grounds of divorce upon the application of one party are more clearly defined. Thus causes (a) and (b) can no longer be set up after the lapse of (?n) For definition, see Entschei- des Bundesgerichts, iii. 373, x. 105 ; dungen des Bundesgerichts, x. 542, Curti, 2404, 2425. XV. 756, xix. 167, xxi. 760; Curti, (q) Art. 49. For the cantonal laws 2397, 2398, 2399, 2428. on the efPect of divorce and judicial (n) Defined by Entscheidungen des separation , see Hiiber, Schweizerisches- Bundesgerichts, ii. 329, vii. 543 ; recht, i., 201 — 237. Curti, 2400, 2401. (r) This view of art. 45 is not ac- (o) Law of 1874, art. 47. Only the cepted by all Swiss writers ; Eossel injured spouse can sue : Entscheidun- and Mentha, Manuel du Droit Civil gen des Bundesgerichts, iii. 273, 500; Suisse, i. 198. The text of the law Curti, 2402, 2403. says, "upon the application of both. {p) No action may be brought for spoiises." judicial separation: Entscheidungen M.L. 54 850 DIVORCE CONTINENTAL SYSTEMS. five years, nor if pardoned ; nor is adultery, consented to by the other spouse, a cause of divorce (s) ; criminal and dishonourable conduct again will be a ground for divorce, without any conviction by a Court, provided that it is of such a nature that the other apouse cannot reasonably be expected to continue cohabitation (t); malicious desertion will include a refusal to return to cohabitation made without sufficient reason (u) ; and mental disease will only be a ground of divorce if it is of such a kind that the continuance of cohabitation cannot reasonably be required of the other spouse (a). The indeterminate causes of divorce provided for by the old art. 47 (h) are now limited to cases Avhere they are sufficiently serious to render it unreasonable to require the party injured to continue cohabitation (c). Under the present law the only lawful claim in an action is for divorce ; under the Code the action may be either for divorce or for judicial separation, and no decree of divorce may be made in an action for separation only (d). On the other hand, a judicial separation may not be granted in an action for divorce unless there is a prospect of reconciliation (). (/)) The marriage of a divorced (c) Art. 142. wouian is in any case illegal until (d) A claim may of course be for the expiration of 300 days from the ."ioparation or divorce alternatively ; divorce ; but this period is terminated SWITZERLAND. 851 (in the case of adultery the period may 1)6 extended to three years) ; but this period includes the duration of any judicial separation which ma}^ have been pronounced (/)• The Code will also regulate the con- sequences, pecuniary and other, of divorce, which under the present law are left to be determined by cantonal law, and agreements with regard to such matters will be subject to the sanction of the Court (/r). Thus, where a divorce is pronounced, the guilty spouse must com- pensate the innocent for any loss of property or expectations that the latter may suffer thereby ; and the Court may also require the payment of a sum of money by way of satisfaction {Genugtuung, reparation morale, riparazionc) for any grave injury to jjersonal relations which may result from the circumstances which have given rise to the divorce {I). An innocent spouse who would fall into great destitution by reason of a divorce may also be granted a contribution toward his or her subsistence {Untcrlialtsheitrag, jyension alimentaire, pensione aUmentare) at the expense of the other, even if he or she was not in fault {m). Such a contribution may, upon the application of the spouse who is liable to pay it, be extinguished or reduced if the destitution no longer exists or is considerabl}^ diminished, or if the contribution is no longer pro- portionate to the circumstances of the applicant {n). Any life- annuity payable by reason of a judgment or by agreement, whether by way of compensation, satisfaction or contril)ution to subsistence, w'ill be extinguished by re-marriage {o). The effect of a decree of divorce upon the matrimonial rkjime is to divide the property of the spouses into husband's and wife's property, any increase being divided according to the existing rcfiime, while a diminution is borne by the husband, except in so far as he can show that it has been caused by the wife. A divorce likewise extinguishes any right of inheritance, or claim under a testamentary disposition or marriage contract between the spouses (p). On a judicial separation the Court will decide, upon a con- by a birth, and may be abridged by (/) Art. 151. the Court, if no pregnancy of the wife [m) Art. 152. can have arisen from the marriage, or (n) It appears that such a contribu- where divorced spouses re-marry ^arts. tion cannot in any case be increased ; 103, 104). Eossel and Mentha, op. cit., i. 122. (i) Art. 150. (o) Art. 153. (A-) Art. 158. {])) Art. 154. 54—2 852 DIVORCE — CONTINENTAL SYSTEMS. sideration of the duration of the separation and of the circumstances of the spouses, whether the existing rSfiime shall be maintained or dissolved ; but a sejDaration of property may not be refused if either of the spouses demands it (q). A divorced wife retains the civil status which she has acquired {e.g., as regards citizenship) by the marriage, but takes the name which she had before its solemnisation, and if she was at that time a widow she may be authorised by the Court to take her maiden name (r). The relations of the parents to the children and the parental power are determined by the Court after hearing the parents, and, if necessary, the guardianship authority. A spouse from whom the children are withdrawn must contribute reasonably, according to his or her circumstances, to the expenses of their maintenance and education, and remains entitled to reasonable j)ersoual intercourse with them (s). The Court may also, upon the application of the guardianship authority or of either parent, make such variations of its orders as regards these matters as may be rendered necessary by a change of circumstances, such as the re-marriage, death, or change of residence of a parent (0- In the Scandinavian countries (a), besides divorce, sejDaration has always been recognised by the common law, and in Norway is now placed on a statutory basis. Denmark. — Divorce in Denmark is regulated by the Code of Christian V. of 1684, and Ordinances of December 13th, 1750, and September 11th, 1839 {b). {(f) Art. 155. ing to the Code of Christian Y., (»•) Art. 149. contain the following rules relative to (s) Art. 15G. divorces: (<) Art. 157. "Si conjux cum conjugis fratre, (a) See I. H. Denntzer, Den nordisk sorore, vel persona sanguine ipsi Famielie ogArveret, Kjobeuhavn, ISTS proximc conjuncta, contra legem (in Nordisk Eetsencycloptedi II.) ; Divinam, corpus misceat, et, singu- I. 11. Deuntzer, Dansk FamilieiTet, 3 larem ob causam, remissionem poenae vols., Kjobenhavn, 1S92 ; Winroth, capitalis impetret ; conjugibus indi- Svensk Civilratt, 1, 2, Aktenskap, vulso matrimonii vinculo permanere Stockholm, 1S9,S ; Dr. Oscar Platou, conceditor. nisi innocens nocentem Om Olgteskab og Skilsuiisso efter connubio suo exigi desidoret. norsk Ik-t., Clu-istiania, 1S99. " Si maritum vel nuiritam lepra, vel (b) The laws of Denmark, accord- morbo venereo, quiim ante nuptias non DENMARK SWEDEN. 853 A divorce can be obtained — (1) By Judicial sentence : (a) On the ground of an act antecedent to marriage, namely, (a) concealed impotence, (/3) concealed and communicated leprosy, or venereal disease, (y) incurable insanity ; (b) on the ground of an act subsequent to marriage, namely, (a) adultery, (/3) bigamy, (y) malicious desertion. (2) Bj adi)ii)iistratire sentence on the grounds of: (a) Criminal sentence of not less than seven years' penal servitude passed on either spouse ; (/3) incurable insanity ; (y) three years' actual living apart in accordance with a decree of separation. Divorce on the ground of adultery may be refused where the petitioner has been guilty of the same offence or of some other grave misconduct. If such allegations are made against a petitioner, the Judge ought to scrutinise his petition jealously. When divorce has been pronounced on the ground of adultery, the innocent spouse may re-marry freely. The guilty wife can only re-marry with the permission of the King, at the end of three years, and on condition of establishing good conduct in the interval. She is prohibited from marrying and living in the parish, district, or town where her former husband resides. Sweden (c). — Grounds of Divorce. — Adultery on the part of either husband or wife, if not condoned and should no marital relations be resumed after knowledge of the offence, entitles the innocent detexit, labuiasse, posteaque coutagio- "Si quis exilio multatus sit; nee nein a inorbida ad sanam personam tamen ob facinus infamia dignum ; serpsisse probabile sit ; parti Isesee septennium uxor maritum expectato ; divortii cum leedente faciendi potestas si interea magistratum sibi proi^itium esto. Si maritus aut marita furtum reddere ac restitutionem in integrum aut aliud infame facinus designasse queat impetrare : sin minus, elapse deprehenditui', capitali quidem sup- septennio, novum uxori conjugium plicio dignum, sed cui- pcense capitahs permittitor." Burge, 1st ed., i., 652, I'emissio singulari magistratus indul- 65o. gentia conceditur: non ideo conjugii This Code does not mention separa- vinculum dissolvitor. Quod si talis tion, but the common law, based on persona malefica exilio fuerit mul- long custom, recognised it. tata aut profugerit : restitutione in (c) Pari. Rep. of 1894, pp. 146, 147 ; integrum a magistratu intra trien- Code of 1734, Pr. (Giftermals Balk) ; nium non impetrata ; liberum esto and as to the divorce of foreigners, see parti innocenti ad novum transire lawof July 8th, 1904. The Code allows conjugium, dummodo se interea the consorts, if there is ill-feeling or houestam atque impollutam egisse hatred between them, to obtain judicial vitam legitime queat ostendere. separation : ch. 14. 854 DIVORCE — CONTINENTAL SYSTEMS. party to a divorce, the guilty party forfeiting half his or her share in the joint property. Complaint must be made within six months after discovery of the offence, and no divorce will be granted if both parties have committed adultery, unless such has been pre- viously condoned. Divorces may also be obtained on the grounds of infidelity after betrothal on either side, or if the wife confess to immorality previous to her betrothal and the husband refuse to condone it, or if either husband or wife suffer from bodily incapa- city or have concealed deliberately the fact of being affected with any incurable contagious disease or be sentenced to imprisonment for life, or have been found guilty of attempting the life of the other party, or if for three years one of them have been insane and competent physicians declare that there is no hope of recovery. The most usual way of obtaining a divorce, however, is under the Code of 1734 (f?), which enacts that if one of them leaves home with the intention of no longer living with the other and goes out of the kingdom, then the abandoned party may apply for a summons for malicious desertion from the proper Judge. If the absconding party's whereabouts be unknown, the Judge causes a notice to be read from the pulpits of the churches within his jurisdiction citing such party to return within a year and a day to his or her home. If this notice be neglected, a divorce is granted on the expiry of such period, the absconder forfeiting all claims on the joint property. If, on the other hand, the abode of the absconding party be known, a writ of summons may be at once served on him or her, and the divorce can then be obtained by judgment within a very short time, depending on the distance of the absconder from the place of jurisdiction. About one week will often suffice. Application to the King(r'). — Divorces may also be appHed for by direct appeal to the King in the following cases : (1) Sentence to loss of life, or of civil rights, notwithstanding the grant of a pardon ; (2) conviction of grave crime and sentence to penal servi- tude for a term of years ; (3) conviction of prodigality, drunkenness, or a violent temper, or where such differences are proved to exist between the parties as to cause mutual detestation and iiatred. In this last case the otTending party must have been warned first by ('/) Vr. (Gifteruiuls Balk), di. i:J. (f) Ordinance, April 27th, ISIO. 88. 4—6. NORWAY. 855 the rector of his parish, and, if he persist in his conduct, hy the superior ecclesiastical authority. If such warnings fail, separation a incnsa et toro is ordered for a year, and on the expiry of that period divorce can be obtained on proof of the preliminary proceedings. Where a divorce is granted on the ground of one party having attempted the life of the other, the guilty party forfeits all share in the joint property. Where insanity is the cause of the divorce, each party retains his or her legal share in the joint property, and, moreover, the applicant for the divorce will be still bound to con- tribute out of his or her means towards the future maintenance of the other party as well as of the children, if any. Norway. — In Norway divorce may be demanded on the grounds of : (a) Adultery ; (b) unjustifiable desertion, during three years at least ; (c) absence for at least seven years, when there is no presumption of death ; (d) condemnation to hard labour for life, unless pardon is granted within the first seven years (/) ; (e) sen- tence of either party to imj)risonment exceeding three years, or to a period of uncertain duration, or to imprisonment exceeding three months for any crime committed against the petitioner, or for any act by which his or her life has been deliberately endangered, or being finally sentenced to imprisonment, irrespective of time, for specified crimes of an outrageous or unnatural character ; (f) the judicial deprivation of either spouse of the custody of, and of authority over, the children of the marriage, or the sentencing of either for vagrancy, intemperance, or other misconduct. Where a dissolution of marriage has been pronounced both parties are entitled to marry again, but before doing so a party found guilty of adultery requires the Eoyal licence, which as a rule cannot be obtained" for a period of three years after the decree of divorce has been pronounced. A marriage can, moreover, be dissolved bj^ a Eoyal decree — (1) when three years have elapsed since a grant to the parties of a judicial separation ; (2) when the parties have been actually living separate for seven years, although no judicial separation may have been granted to them. Eoyal decrees dissolving a marriage do not enable either party to marry again. A special licence is necessary for that purpose, and such (/) Ordiuance of December ISth, 1750. 856 DIVORCE — SCOTS LAW. special licence can usually be obtained on proof that the party applying for it has been of good conduct during the three or seven years of separation as the case may be. By a recent law (g) a marriage can also be dissolved upon the requirement of the one party, if the other, when contracting the marriage, sufifered, without the knowledge of the former, from some bodily deficiency, rendering him or her unfitted for marriage, or from epilepsy, lej)rosy or contagious venereal disease, or mental disease, or has been made pregnant by another. Dissolution of the marriage can also be required, if one of the parties during marriage has been guilty of a certain category of crimes, or has for two years deserted the home, or has for three years been mentally diseased without reasonable prospect of recovery; likewise, when the hus- band and wife, after separation, have lived apart for two years. Living apart for one year is sufficient if both parties require divorce. By this law separation a mensa et toro is recognised, and is to be granted, after a previous attempt at reconciliation, when both parties, husband and wife, are agreed thereon. Separation may also be granted upon the requirement of either party if the other fails in the obligation of maintenance, or otherwise is guilty of breach of matrimonial duties, or has fallen a victim to the abuse of alcoholic liquors, or leads a scandalous life, or has been convicted with loss of civil rights, or when such disagreement has arisen between hus- band and wife that it cannot reasonably be required that they shall continue to live together (f/). The law furthermore contains provisions on legal points regarding the dissolution of the marriage, the settlement of property, the obligation of maintenance (alimony), and the custody of the children (when young they are as a rule to follow the mother). SECTION IV. Bkitish Dominions and United States. Scots Law. — History of Divorce. — The marriage law of Scotland as regards the dissolution, as well as the constitution, of the nuptial tie, rests upon the basis of the canon law (//). Before the liefonua- tion all jurisdiction in matrimonial causes belonged to the Bishops' Cv) August 2()th, 1909. Watson in Collins r. Collins (1884), 9 (/i) This and tho following passages A. C, at p. 2^5. are taken from the judgment of Lord GROUNDS OF DIVORCE. 857 Courts, from which an appeal lay, not to the Civil Courts of Scot- land, but to Rome. By a charter dated February 8th, 15t33, Queen Mary, however, with the advice of the Lords of her Secret Council, in order to provide a remedy for the lapse of ecclesiastical jurisdic- tion, appointed four principal Commissaries at Edinburgh to have an original and privative jurisdiction in all marriage, divorce, and bastardy cases, subject to the review of the Court of Session only. In the year 1592 that appointment was ratified by the Scottish Parliament (<). The jurisdiction of the Commissaries was trans- ferred to the Court of Session in 1830 (k). Considerable changes were, however, made in the matrimonial law previously ad- ministered in the Ecclesiastical Courts by the legislation of the Reformation period. Under the canon law, from the Council of Trent to the Reformation, the marriage tie was universally regarded as indissoluble, and separatio tori was the only remedy given for adultery in the Courts of the Church. The Act of 1573, c. 55, estab- lished in Scotland the remedy of divorce a vinculo for desertion. Divorce a vincuh) for adultery seems to have been previously adopted by the new Consistorial Courts in compliance with legisla- tion for the establishment of the reformed religion (0. The Commissaries, however, in the administration of matrimonial suits, closely followed the canon law, in so far as it remained unaltered by express statute or by legislative recognition of the reformed faith (m) ; and the canon law has received equal regard from the Court of Session. Grounds of Divorce. — The grounds of divorce in Scots law are adultery and wilful desertion for four years. Defences. — The defences to an action on the ground of adultery are similar to the defences under English law(»), but a few special points are worthy of notice. 1. Collusion (o).- — The plea of collusion may be set up by the defender ( jj) ; by the co-respondent, by any creditor whose rights would be prejudiced (12) » ov by the Lord Advocate (/•). The powers (i) Scots Act, 1592, c. 64. (0) See p. 868, ii>fra. (/«) 11 Geo. IV. & 1 Will. IV. c. 69, (j>) Mackay's Manual of Practice, ss. 31, 33, 36. 483. (Z) Scots Acts, 1560 and 1567. (q) Ersk., i., 6, 45. (??i) See Stair, i., 1, 14 ; Bankton, (r) Conjugal Eights Act, 1861 i., 1, 42. See p. 44. (24 & 25 Yict. c. 86), s. 8. (n) See p. 866, infra. 8o8 DIVORCE — SCOTS LAW. of the Lord Advocate have, however, remained practically a dead letter (s). It has been held to be grave misconduct for a law agent to assist parties in withholding from the Court the facts of a case ('/)• 2. Condonation (h). — By the law of Scotland, full condonation of adultery, followed by cohabitation as man and wife, is a i-emissio injurue, absolute and unconditional, and affords an absolute bar to any action of divorce, founded on the condoned acts of adultery (c). Xor can any condonation of adultery, cohabitation following, be made conditional by any arrangement between the spouses (c). Although the condoned adultery cannot be founded upon, condonation does not, however, extinguish the guilty acts entirely, and they may be proved so far as they tend to throw light upon charges of adultery posterior to the condonation (c). 3. Delay in Instituting Proceedings ((/). — Delay may imply con- donation {e). 4. Connivance ( /"). — The technical term in Scots law for connivance is lenociniKin. Strictly speaking, the word Icnodnium involves the idea of a profit being made out of the adultery connived at ; but in law it is not necessary that this element of pecuniai-y gain should be present (f/). It appears that this plea has been sustained in only one reported case in Scotland where a husband, having married a prostitute, deserted her without supplying her with means of support, and recommended her to return to her former mode of life(/0- In a recent case it was held that passive acquiescence by a husband in the conduct of his wife did not amount to Iriiociniiim (i). i). Effects of Divorce.— (1) As regards the Person and Status of the Spouses. — As in England (./), divorce severs the marriage tie. No distinction is drawn in Scots law between decrees nisi and decrees («) Encj-clo., Scots Law, tit. Collu- (e) Frasor, Iliisbaiul and Wife, ii., eion, iii.,p. lOL 1199. (a) S. S. C. Society v. Officer (/) See p. SOfi. />/"?•(/. (1893), 20 Eettie, 1106. (.v) Wemyss r. Wemyss (186(i), 4 (/)) See p. 866, in/ru. Macph. 660. (c) Collins r. Collins (1884), 9 A. C. (//) Marshall /•. Marshall (ISSl), S 205; Graham v. Graham (1878), 5 Rettie, 702. Eettie, 1093; Smeaton r. Smeaton (/) Thomson v. Thomson (1908), (1900), 2 Fraser, 837. Session Cases, 179. (rZ) See p. 866, infra. (J) See p. 870, infra. EFFECT ON PROPERTY OF THK SPOUSES. 859 absolute. The marriage is dissolved as from the date of the decree, unless the judgment of the Court of First Instance is reversed on appeal. After the expiry of the delays for appeal (reclaiming days) either party may marry again ; and it seems (k) that a marriage at any time after the decree would be valid, subject to its liability to be a nullity if the decree should be reversed on appeal. A decree of divorce may be subsequently " reduced " on the grounds of suborna- tion of witnesses or collusion (/). If a spouse, divorced for adultery, marries the co-respondent named in the decree the marriage is null (in), and a woman who contracts such a marriage, whether the co-respondent is named in the decree or not, cannot dispose of her heritage, onerously or gratuitously, to any person in prejudice of her lawful heirs (h). (2) As regards the Property of the Spouses. — The Scottish Courts have no power to order a settlement in cases of divorce. But by the Scots Act of 1573, c. 55, in cases of divorce for desertion — and, subject to a possible exception (o), the same rule applies to divorces for adultery (j)) — the guilty party shall " forfeit and lose toclier and donationes propter nuptias." The effect of this rule is that the interest provided by a marriage contract, or resulting from the law, for the benefit of either of the spouses is, by the adultery of the delinquent, lost for the benefit of the other (jj). "There is a forfeiture by the statute of all such pecuniary advantages as the offending spouse has gained by the contract, with the result, but with nothing more, that the other spouse acquires such rights as he or she may have under the contract free and disburdened from any such pecuniary advantages. There is no transfer of rights to any other party, or any enactment that the rights of children or beneficiaries are to be thereby created, or enlarged, or changed, as these have been se-ttled by the marriage contract provisions " (q). As regards legal rights, the innocent wife who divorces her husband becomes at once entitled to terce, or one-third of the rents of (A-) Encyclo., Scots Law, tit. Divorce, restore a torJur paid to him iu cash and iv., p. 311. immixed with his own funds : Justice (/) See Bonaparte v. Bonaparte, v. Murray (1761), Mor. Diet. 334. [1892] P. 402. (/;) Harvey r. Farquhar (1872), (m) Scots Act, 1600, c. 20. L. E. 2 Sc. 192 ; Dawson v. Smart, (n) Scots Act, 1592, c. 119. [1903] A. C. 457. (o) Namely, whether a hushand {q) Per Lord Shand in Dawson i\ divorced for adultery is bound to SrauTt, uhi sapr a cit., at j). -iG'S. 860 DIVORCE SCOTS LAW. her husband's heritage (r), and to jus relicUe, or one-half, or one- third, of the capital of his movable estate (s) ; while the innocent husband, under the same circumstances, would be entitled to curtesy, or the life-rent of his wife's heritage ; the guilt}^ spouse, on the other hand, losing all claim to legal rights on the death of the innocent spouse (0- As regards contractual rights, the inno- cent wife or husband, as the case may be, is entitled to claim at once all jDrovisions made by the guilty spouse, or by any one on his or her behalf, the guilty spouse losing all interest under the contract (a). This latter statement does not, however, apply to contingent interests of the guilty spouse in funds proceeding from his side {h). Donations made by the innocent spouse to the guilty spouse are revoked ipso facto by the divorce, while those made by the guilty spouse become irrevocable at the date of the decree (c). Judicial Separation. — Judicial separation is granted only on the grounds of adultery and cruelty {scevitia). The Scotch cases in regard to this judicial remedy will be noted below in dealing with the analogous procedure in England {d). The decree does not dissolve the marriage or enable either party to marry again, but it entitles the innocent spouse to live apart from the other. After a decree of separation a mensa et toro, obtained at her instance, all property which the wife may acquire, or which may devolve upon her, is held to be property from which the husband's ,/?/s mariti and right of administration are excluded; it may be disposed of by her as if she were unmarried, and on her death intestate it passes to her heirs and representatives as if her husband had been then dead(e). If she resume cohabitation with her husband all such property as she may then be entitled to is equally excluded from the jus viariti and right of administration of the husband, subject, however, to any written agreement between herself and her husband {e). During a judicial separation the wife can contract, and incur liability for wrongs, and sue and be sued, as if she were unmarried, and her husband is not liable on her contracts or for her wrongs (e). (r) As to tnxc, see i>. 63o, aide. Spittal's Curator ad litem (1893), 20 («) See p. 653, ante, and Johnstone- Rettie, 101(>. Beattie /•. Johnstone (1S67), 5 Macph. (c) J'^rsk., i., 6, 31. 340. ((/) See pp. 8G4, S(5o, iufra. (0 Ersk., i., (J, 4(5—48. (e) Conjugal Rights Act, 1861 (o) Ihi!) Coffey v. Cofeey, [1898] P. 169 ; (a) See, e.g., Westropp's Divorce Bosworthick v. Bosworthick (1902), 86 Bm (1886), 11 A. C. 294, and p. 877, L. T. 121; Thompson v. Thompson infra. (1901), 85 L. T. 172. (i) Although marriage with a de- (e) Sodomy committed by a husband ceased wife's sister has now been with his wife against her consent is a legalised (7 Edw. VII. c. 47), adultery matrimonial offence within s. 27 of with a wife's sister is still "incestuous the Matrimonial Causes Act, 1857: adultery" for the purpose of the C. v. C. (1905), 22 T. L. E. 26. wife's petition for divorce : s. 3 (1). (/) 20 & 21 Vict. c. 85, s. 16. 864 DIVORCE ENGLISH LAW. lead to it by fair inference as a necessary conclusion, and unless this were the case, and unless this were so held, no j)rotection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion (r/). As a general rule of practice the Court will not act on an uncor- roborated confession of adultery. But there is no rule of law preventing it from doing so if satisfied that the story put forward is true and that there is no collusion {It). ■ (b) Bigamy with Adultery. — Here proof of the adultery as well as of the bigamy must be given (i). But a slight proof on the former head will suffice. (c) Cruelty. — In recent years the scope of the term " cruelty " for the purposes of divorce has been carefully considered by the Courts, and the only general definition that can be laid down is that the acts complained of must amount either to injury, or to a reasonable apprehension of injury, to life, limb, or health, bodily or mental (/r). Acts falling short of actual physical violence may, however, for the purpose of divorce proceedings, constitute legal cruelty. In many cases it must depend on the wife's health and constitution and the consequent effect upon her of the particular acts (l). In spite, however, of this general rule, there are many acts which, although not j^er s). (d) Desertion. — Desertion was not a matrimonial offence in the old Ecclesiastical Courts (q). In order to constitute desertion there must be a cessation of cohabitation and an intention on the part of the accused person to desert the other (/■). Desertion is not to be tested by merely ascertaining ^Yhich party left the matrimonial home first (r). The party who intends to bring the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion (r). There is no substantial difference between the case of a husband who intends to i^ut an end to the state of cohabitation and who does so by leaving his wife, and that of the husband who, with the like intent, obliges his wife to separate from him(r). Cohabitation may be of two sorts, one continuous, the other intermittent. The parties may reside together constantly or there may be only occasional intercourse between them, w'hich may nevertheless amount to cohabitation in the legal sense of the term. Such cohabitation may indeed exist, together with an agree- ment to live apart. The circumstances of life, such as business duties, domestic service, and other things, may separate husband and wife, and yet, notwithstanding, there may be cohal)itation ; (m) AValker v. Walker (189S), 77 Sw. & Tr. 592 ; IJaubuiy v. Haubuiy, L. T. 715; and cf. the Scotch cases, [1892] P., at p. 225; Barou i*. Baroa Fulton V. Fulton (1850), 12 Dunlop, (1908), 24 T. L. E. 273. 1104; McGaan v. McGaan (1880), 8 [p] See authorities cited in n. (o). Eettie, 279. (q) Hodgson v. Hodgson, [1905] P. (n.) Hayward v. Hayward (1858), 1 233. Sw. & Tr. 84; Hall v. Hall (1864), 3 (r) Ibi'L; and see Sickert y. Sickert, Sw. & Tr. 349. [1899] P. 278 ; Koch v. Koch, [1899] (o) White I'. White (1859), 1 P. 221. M.L. 55 86G DIVORCE ENGLISH LAW. and the refusal of either spouse to resume cohabitation after a temporary separation for mutual convenience may amount to " desertion " in the eye of the law (s). Previous cohabitation is not necessary in order to constitute " desertion." A husband may be guilty of desertion although he and his wife parted immediately after tbe marriage ceremony (/). A wife is not justified in refusing marital intercourse to her husband unless she has some reasonable ground for doing so ; and if she refuses to live with him unless he promises to abstain from exercising his marital privileges he may leave her without being guilty of desertion " without reasonable excuse," even though he subsequently commits adultery (?(). Bars to Divorce. — These are either absolute or discretionary. The absolute bars are connivance, condonation and collusion. The discretionary bars are cruelty on the part of the petitioner, or such wilful neglect or misconduct on the part of a petitioner as has conduced to the offence proved against the respondent ; desertion by the petitioner without just cause ; adultery on the part of the petitioner ; unreasonable delay in presenting or prosecuting the petition {x). Absolute Bars. — (a) Connivance. — In order to estabhsh connivance by a husband at a wife's adultery it must be shown that he gave a willing consent to it, that he was in fact an accessory before the fact ; mere proof of negligence, indifference, inattention or dulness of ajDprehension will not suffice {y). (b) Condonation. — Condonation is a " blotting out of the offence imputed so as to restore the offending party to the same position which he or she occupied before the offence was committed " {z). Condonation must be voluntary (a) ; it does not necessarily result from continuance of cohabitation {h) ; it must be made with full («) Iluxtable v. Huxtable (1899), 68 P. 2. But see Eobinson v. Rolniison, L. J. P. 83 ; cf. Pape v. Pape (1888), [1903] P. 155. The Court takes 20 Q. B. I). TG ; Peg. v. Leresche, cognisance of connivance although not [1891] 2 Q. V,. 418; Chudley i-. pleaded : Divorce Act of 1857, s. 29. Chudley (1893), 62 L. J. M. C. 97. (z) Keats t-. Keats (1859), 1 Sw. & Tr. (<) Do Laubenque V. De Laubenque, 33-1; and see Act of 1857, s. 29, last [1899] P. 42. preceding note. («) Synge ?'. Synge, [1901] P. 317. («) Cooke v. Cooke (1863), 3 (.t) See Johnson v. Johnson, [1901] Sw. & Tr. 163. P. 193 ; Paton v. Lowtliwaite (or {h) Curtis v. Curtis (1858), 1 Sw. & Paton), [1903] W. N. 44. Tr. 192. This rule applies particu- (y) Allen v. Allon (1859), 30 L. J. larly to continuaTico of cohabitation ABSOLUTE BARS — CONDONATION. 867 knowledge of the facts (r) ; but a matrimonial offence may be condoned although the guilty party conceals from the other the commission of other matrimonial offences (^0- It is settled in England (<>), that condonation is conditional on no offence, of which the Court can take cognisance, being in future per- petrated (_/"), and the conditional character of condonation is a doctrine applying to both sexes (a). Thus it has been held that condoned adultery will be revived by subsequent cruelty (li) or by subsequent misconduct falling short of adultery (i), incestuous adultery by subsequent adultery not incestuous (A), condoned desertion and adultery by subsequent adultery (l) and desertion by not complying with a decree for restitution of conjugal rights by subsequent adultery {m). The effect of condonation of an offence which is specified as a ground of complaint within the terms of the Summary Jurisdiction (Married Women) Act, 1895 (n), does not depend on the wording of any section of that Act but on the common law, and therefore the resumption of cohabitation during the course of proceedings under the Act, but before any order has been made by the justices or magistrate, puts an end to the cause of complaint by force of the common law, even although the law itself deals only with condonation by the resumption of cohabitation after the date of such an order (o). In order that the Court should exercise the discretion conferred on it by the Matrimonial Causes Act, 1857 {})), to pronounce a decree in favour of a petitioner guilty of adultery, it is not enough that the petitioner's misconduct was more or less pardonable or capable of after one or even several acts of (//) See Dent v. Dent (18'i5), 4 cruelty — cruelty generally consisting S\v. & Tr. 105. in a series of acts : ibid. (0 Eidgway y. Eidgway (1881), 29 (c) Peacock v. Peacock (1858), 1 W. E. 612. Sw. & Tr. 183 ; Campbelly. Campbell {Jc) Newsome v. Newsome (1871), (1857), 5 W. E. 519. L. E. 2 P. & D. 30G ; Houghton v. {d) Bernstein v. Bernstein, [1893] Houghton, [1903] P. 150. P. 292; 12 Eul. Cas. 783. (/) Blandford v. Bkndford (1883), (e) Aliter in Scotland ; Collins v. 8 P. D. 19. Collins (188-4), 9 A. C. 205; and as to (m) Paine v. Paine, [1903] P. 263. the English decisions, see the observa- {n) 58 & 59 Vict. c. 39. tions of Lord Blackburn in Collins v. (o) Sees.7, and Williams v. "Williams, Collins, ubi supra, at p. 237. [190-1] P. 145. (/) Palmer v. Palmer (1860), 2 (p) 20 & 21 Vict. c. 85, s. 31. See Sw. & Tr. 61. Hansard, cxliv. (1857), 1685. (y) Copsey /-. Copsey, [1905] P. 94. 55—2 868 DIVORCE — ENGLISH LAW. excuse ; it must have been caused directly by the matrimonial offence or offences of the respondent (q). Condonation may be implied from delay in instituting pro- ceedings, as when the delay is not sjpecifically accounted for by the party complaining or is not apparent from the circumstances of the case. A delay thus unexplained founds a presumption of passive acquiescence in the complainant (;•). But there is no legal limitation and there may be reasons of discretion which may make the husband passive ; that has never been held to amount to a condonation. It is not necessary, however, to avoid a condonation of this character that a husband should instantly close his doors upon an offending, and it may be, a rej^entant wife; recollecting her former innocence, he may indulge at least in some feelings of i^ity for her degraded situation, and until a fit retirement is provided, allow her the protection of bis roof but not the solace of his bed. Yet after condonation a fresh cause of complaint gives a new title to the sentence of the Court ; for condonation is always presumed to be conditional and does not deprive the forgiving party of the right of complaint in the event of the repetition of the offence (s). In case of such a repetition, subsequent facts revive the criminal effect of those -which the condonation had absolved. But unless the latter offence be satisfactorily proved, mere evidence of former criminality will be ineffectual to entitle the complainant to the remedy sought for. This observation applies also to the condonation of cruelty, the effect of which may be effaced by subsequent events {t). But repeated condonation as respects adultery, it seems, would be held as amounting almost to licence, and a person proved to have submitted easily to frequent injury would be scarcely allowed to comi)lain of what appeared hardly to bo considered as an evil (//). (c) Collusion. — In its simplest forms collusion is an agreement either, on the positive side, to put forward true facts in su{)port of a false case, or false facts in sujiport of a true case ; or, on the (7) Wyko V. Wyke, [1904] P. 149, (.«;) Walker r. Wiilker (LSI;}), 2 Phill. distinpuishing Constantinidi v. Con- 153. staritiiiidi, [190:3] P. 246. (t) Perrers v. Perrers (ITSS, 1791), (r) I'.otcher v. Betcher (1787), cit. 1 Hagg. 0. 11. l.'JO. 2 Pliill. loo; Best V. Best (1814), ihid. («) Dunn r. Dunn (1817), 2 Pliill. Uil ; Nash v. Nash (1790), 1 Hagg. Eep. 411. C. 1;., p. 1 12. DISCRETIONARY BARS. 869 negative side, to suppress facts which would prevent, or tend to prevent, the Court granting a divorce (.r). But the term has also a wider range. If the initiation of a suit be procured, and its conduct (especially if abstention from defence be a term) provided for by agreement, that constitutes collusion, although no one can put his finger on any fact falsely dealt with or withheld (,r). The concealment of facts only amounts to collusion if the facts are material, i.e., are such as, if disclosed, would lead the Court to refuse a decree (?/). Discretionary Bars. — This subject has already been practically disposed of by anticipation {2), and all that it seems necessary to add here is that while adultery on the part of a petitioner comes within the category of discretionary bars (a), the Courts treat it rather as an absolute one and refuse to grant a decree of divorce in such cases unless satisfied that the adultery has been committed under an erroneous view of the law or under exceptional and excusable circumstances (b). The discretion given to the Court in regard to bars of this character is a judicial, and not an arbitrary one (c). Where the wife has been proved guilty of adultery and the husband of cruelty, the principle which ought to guide the Court in determining whether the husband's cruelty ought to constitute a bar to relief, rests, as a general rule, upon the consideration of the question whether or not the petitioner's cruelty has been of such a nature as to conduce to the wife's misconduct. The cruelty may, however, be of such a Avanton and unprovoked description that the Court ought to refuse a decree, even though it has not conduced to the adultery of the respondent (r). Where the husband who seeks a dissolution of his marriage has been previously convicted of desertion under (x) Churcliward v. Churcliwarcl, section, Constantinidi v. Constantinidi [1895] P. 7; cf. Scotch case, Graham andLance, [1903JP.246 ; [1905] P. 203. V. Graham (18S1), 9 Eettie, 327. {h) See Symons v. Symons, [1897] (?/) Hunter v. Hunter, [1905] P. P. 167; Burdon u.Burdon, [1901] P. 52; 217, following Alexandre v. Alexandre Evans v. Evans and Elford, [1906] P. (1870), L. E. 2 P. & M. 164, and 125, disapproving the decision of Lord questioning and declining to follow St. Helier in Constantinidi v. Con- Eoche r. Roche, [1905] P. 142. stantiuidi, [1903] P. 246. See also (2) Siq^ra, p. 866. Todd v. Todd and Cunniam (1907), 23 {a) See 20 & 21 Vict. c. 85, s. 31 ; T. L. E. 9; 24 T. L. E. 28. and as to the construction of this (r) Pryor r. Pryor, [1900] P. 157. 870 DIVORCE ENGLISH LAW. the Summary Jurisdiction (Married Women) Act, 1895 (d), the Court \Yill go into all the circumstances of the case and consider ^Yhether he is entitled to a decree ; the mere fact of his conviction will not of itself be sufficient to establish a bar(e). Under the Matrimonial Causes Act, 1857 (f), the decrees pro- nounced by the Court were final in the first instance ; but under existing legislation (;/) a decree 7iisi is now granted on the con- clusion of the hearing, if a proper case for a divorce is made out : and it is only after the expiry of an interval of six months there- after that this inchoate divorce is converted into a decree absolute. At any time before the decree absolute, the King's Proctor may intervene if he becomes aware of reasons which ought to constitute a bar to the divorce. The decree nisi does not alter the status of the parties (/<)• Neither petitioner nor respondent can marry again ; and if the petitioner die in the interval the decree cannot be made absolute on the application of his legal representatives. After the decree absolute, however, the divorced " woman is no longer a wife ; she has not the rights, nor has she the duties of a married woman. She is at liberty to marry again. The equitable doctrines of sepa- rate use and restraint against anticipation have no application to her until she does marry again. Whatever property she may have or acquire is her own ; her former husband has no interest in it. He, on the other hand, is not bound to support her ; she has no imi^lied authority to pledge his credit, even for necessaries. She is free from him, and he from her" {i). Maintenance. — Alimony. — Variation of Settlements. — The Divorce Court has, however, power to make orders for the maintenance of a divorced wife (A), for the custody of the children of the marriage (/), and for the variation and execution of settlements " either for the benefit of the cliildren or of their respective parents " (m), and may {d) 58 & 59 Vict. c. 39. iiiiino after the dissolution of the (e) Lloyd V. Lloyd (1901), S4 L. T. marriiifje by divorce, see p. 270, ante. 728. {h) Act of 1907 (7 Edw. VIL c. 12), (/) 20 & 21 Vict. c. 85. s. 1. Qj) See 23 & 24 Vict. c. 144 ; 25 & 20 (/) Act of KS57 (20 .t 21 ^'ict. c. 85), Vict. c. 81 ; 29 «& 30 Vict. c. 32, s. 3. s. 35. (/() Norinau v. Villars (1877), 2 (m) J hid., s. 45 ; Matrimouial Ex. ]). 359. Causes Acts, LS59 (22 & 23 Vict. c. 01), (/) WatkiiiH V. Watkins, [1890] P. s. 5, and 1878 (41 Vict. c. 19), s. 3. 222, ])or Liiidloy, L.J., at p. 225. As Sums of money ordered \uuler s. 1 to the right of a wife to her husband's of the Matrimonial Causes Act, 1907 MAINTENANCE. 871 exercise its power even if tliere are no children of the marriage (n). It has always been the practice of the Court, in exercising the power of variation, to consider what is for the benefit of the children, if anj', they being innocent parties, and to see that nothing is done which would be for their disadvantage. At the same time, however, the Court ought in every case to consider what the effect of the whole order it is about to make would be, and not merely the effect of any particular portion alone (o). Thus, on a motion for the variation of a settlement of a wife, who had obtained a dissolution of her marriage, the Court extinguished all the husband's interests in it, as though he were dead, and gave the petitioner power to appoint part of the fund, if she should marry again, for the benefit of the second husband and the children of such second marriage. This power had been given to the wife by her settlement, in case she survived her husband, but not otherwise. The ground of the decision was that the children of the marriage having, by reason of the acceleration of their interests, owing to the extinction of the interests of the husband, acquired a substantial benefit, there was nothing unfair in asking them to concede such a power of appoint- ment to their mother (o). The Court acts also on the principle that where the breaking up of the family life has been caused by the fault of the respondent, the petitioner and the children should be placed in a position, as nearly as circumstances will permit, the same as if the family life had not been broken up (jj). But a settlement may be varied, in exceptional cases, at the instance, and in favour of, the guilty party, e.g., a guilty wife, who had settled all her property on her husband, and would otherwise be left penniless (q) ; or the husband may be ordered, under such (7 E(l\v. YIT. c. 12), to be paid settlements under these Acts cannot by a husband for the maintenance be exercised after the death of the of his divorced wife are a purely per- petitioner iu a matrimonial cause by sonal allowance, and so long as the making the executor a party : Thorn- order subsists can neither be alienated son v. Thomson, [1896] P. 26:3. nor released : Watkins v. Watkins, (u) Matrimonial Causes Act, 1878, iihi supra. See further as to the con- s. 3. struction of these provisions and the (o) Whitton v. Whitton, [1901] P. powers exercisable under them, 348. Blood V. Blood, [1902] P. 190 ; {p) Hartopp i-. Hartopp, [1899] P. Morrissey v. Morrissey, [1905] P. 90 ; 65. Savary v. Savary (1899), 79 L. T. 607. {q) Wootton Isaacson v. Woottou The power of varying or making Isaacson, [1902] P. 116. 872 DIVORCE ENGLISH LAW. circumstances, to secure to his wife a permanent compassionate allowance (r). As to the amount of maintenance, the general rule is that one-third of the joint income of the husband and wife should be given as permanent maintenance to a wife who is petitioner and has obtained a dissolution of her marriage (s). But where such income is very large, the test is what would be con- sidered an adequate jointure for the wife, as widow, in case of her husband's death (s). The Court has no power to order a lump sum to be paid over to the petitioner by way of permanent maintenance (0- Damages. — In lieu of the old action of criminal conversation, a husband may either in a petition for dissolution of marriage or judicial separation on the ground of adultery, or in a petition limited to such object only, claim damages from a co-respon- dent (//) ; and whenever, in any petition presented by a husband, the alleged adulterer has been made a co-respondent and the adultery has been established, the Court may order the co- respondent to pay the whole or any part of the costs of the proceedings (x). Loss of coiisortiiuii is not the only ground on which damages ought to be assessed against a co-respondent ; and the mere fact that a man was separated and living apart from his wife at the time she was seduced, is no answer to a claim for damages by the husband against the adulterer, though it may be a good reason for assessing the damages at a lower rate(^). The burden of showing that tlie co-respondent knew that the respondent was a married woman is cast on the petitioner, and, in the absence of evidence, a jury should assume that the co-respondent had no reason for believing that the respondent was other than a single (r) Aslici'oft V. Ashcroft (1902), 71 Squire, [1905] P. 4. L. J. P. 125. Here tlie Court was (t) Tweutj-inau v. Twentyinan, satisfied that the wife was in delicate [1903] P. 82. health and unable to support herself, (») 20 & 21 Vict. c. 85, 8. 33. and that she had no means, nor any (,(.) Hid., a. 34. As to the position friends or relations who would support of the executor of a co-respondent who her. has died after damages have been («) Kcttlewell v. Kettlewoll, [1898] given against him and between decree P. ] 38. As to whet hor the di(7n sa/n nisi and decree absolute, see Brydges ct canta clause should limit permanent v. Brydges (1909), 25 T. L. P. pp. maintennnco, see S. C, and cf. Smith 412 ; [1909] P. 187 (C. A.). V. Sniilli, [1898] P. 29 ; Squire ?•. (//) Evans ?•. Evans, [1899] P. 195. RESTITUTION OF CONJUGAL RIGHTS. 873 woman (^), Damages may, however, be recovered from a co- resi^ondent whether he knew that the respondent was a married woman or not(z). But knowledge is an important element in assessing what amount of damages ought to be paid (z). Damages awarded to a petitioner against a co-respondent and ordered to be paid into Court, although the,y will not support a bankruptcy petition against the co-respondent, are nevertheless a debt provable in bankruptcy (a). A petition for damages only presented by a husband under s. 33 of the Matrimonial Causes Act, 1857 [h), is, by the same section, to be dealt with subject to all the enactments of the same Act with reference to petitions presented thereunder. Where, therefore, a husband who presents such a petition has himself been guilty of a matrimonial offence, which, in the exercise of the discretion vested in the Court, would lead it to refuse to grant him a decree in a suit for dissolution of the marriage, he is, on the like ground, debarred from recovering damages from the adulterer (e). The Matrimonial Causes Act, 1907 (t/), provided {e) that in every case, not already provided for by law, in which any person is charged with adultery with any party to a suit or in which the Court may consider in the interest of any party to a suit that such person should be made a party to the suit, the Court may, if it thinks lit, and on such terms as it thinks just, allow that party to intervene. Intervention was formerly confined to a person charged in the })etitwn {/) or application for cross-relief (g). The hardship to which this state of things gave rise is well illustrated by such cases as Harrop v. HarropQi) and Lowe v. Lowe (/'). Restitution of Conjugal Rights. — Where one of the parties to a marriage has, without lawful excuse, withdrawn from cohabitation, the other may institute proceedings for the restitution of conjugal rights. Such proceedings are now governed by the Matrimonial (2) Lord v. Lord, [1900] P. 297, (f) Cox v. Cox, [1906] P. 267. apidyiiig the rules at common law in ('?) 7 Edw. YII. c. 12. action for crim. con. See Calcraft v. (c) S. 3. Harborough (Earl of) (1831), 4 C. & P. {/) Act of 1857 (20 & 21 Vict. c. 85), 499, at p. 501. See also Watson v. s. 28. Watson (1905), 21 T. L. E. 320. (7) Matrimonial Causes Act, 1S6() {a) In re O'Gorman, Ex parte Bale, (29 & 30 Yict. c. 32), s. 2. [1899] 2 Q. B. 62. (A) [1S99] P. 61. {h) 20 & 21 Vict. c. 85. (/) [1899] P. 204. 874 DIVORCE ENGLISH LAW. C.auses Act, 1857 (/r), but s. 22 of that Act provides that the prin- ciples and rules on which the Ecclesiastical Courts formerly acted in these cases are, as far as possible, to be followed. Contrary, however, to the practice of the bid ecclesiastical tribunals, conduct on the part of a petitioner for restitution of conjugal rights failing short of a substantive matrimonial offence may now be sufficient to justify the Court in refusing a decree (/). Down to 188-4 disobedience to a decree for the restitution of conjugal rights might be punished by attachment and imprison- ment. But the Matrimonial Causes Act of that year (m) abolished imprisonment as a means of enforcing decrees for restitution, pro- viding as an alternative that wilful disobedience to such a decree might be pleaded as desertion, although the statutory period of two years had not expired, and that the aggrieved party might sue for judicial separation on the strength of it. A written demand for restitution of conjugal rights must precede action (»), and the proceedings may be stayed if the respondent intimates a readiness to resume cohabitation (o). Judicial Separation. — The grounds of judicial separation at the instance of either husband or wife have been stated already (^O* Petitions for judicial separation are to be dealt with on principles and rules which, in the opinion of the Court, are as nearly as may be conformable to those on which the Ecclesiastical Courts acted and gave relief, but subject to the provisions of the Matrimonial Causes Act, 1857, and the rules and orders under it (q). Compeiisatio Criminis. — Under the old ecclesiastical law of England the only grounds for which divorce a mensa et tow was granted were adultery, cruelty, and unnatural practices (r). Desertion, as already stated (s), was not a matrimonial offence till it was made so (A-) 20 & 21 Vict. c. 85. affectionate iiuture ; nor will the Court (/) Russell V. Eussell, [1895] (C. A.) inquire too closelj-into the peremptory ]'. :^15; Oldroyrl /•. Oldroyd, [1S96] character of the words used, provided 1'. 175; and see JSlackonzie v. that the request is clear: J'^Uiott r. Ma.'konzio, [lsi)5] A. C, per Lord Elliott (1901), 85 L. T. 648. llfii-.schoU, at p. ;iS!). («) Divorce Rules, r. 176. (7/i) 47 & 48 Vict. c. 68, s. 2. {[>) See p. 863, ante. (//) Divorce Rules, r. 175. The {q) Act of 1857, s. 22. demand must be of a friendlj' and not (?) Bromley v. Bromley (1793, 1794), of a hostile cliaracter ; but it is not to 2 Adams, 158, n. (<) ; Burgo, 1st cd., be oxju'ctcid that a letter written under i., 055, n. (r/). such circum.stanccs should be of an (.s) Sco j). ^65, siqird. coMPEXSATio cm MI XI s. 875 by the Matrimonial Causes Act, 1857 {t). The Ecclesiastical Courts, liowever, acted on a principle which sometimes seems to have been thought restrictive, and which has been variously defined as follows : "Compensatio criminis est si pars rea probaverit partem agentem etiam adulterium commississe, absolvenda est pars rea, quoad petita in libello partis agentis " (?<)• " Id ita accipi debet, ut ea lege quam ambo contempserunt neuter vindicetur. Paria enim delicta mutua pensatione dissolvuntur " (r). Adopting the above maxim, which has been termed the doctrine of compensatio t'ri/;;//?/'s, the Ecclesiastical Courts held that a suit for divorce a mensa ct toro might be barred if both parties were convicted of the same fault {ic). But the doctrine of compensatio criinims did not supply an exhaustive canon, for it was decided that a person who had been guilty of adultery could not maintain an action for cruelty {x) ; and although there are authorities (i/) for the proposition that cruelty could not be pleaded in recrimination to a charge of adultery, and as a bar to divorce for such adultery, because the delictum was not the same, the rule of compensatio ci-i)ninis has been very much questioned; and it is now, at any rate, settled that a judicial separation should only be granted where the petitioner comes to the Court free from any matrimonial misconduct. Accordingly where a husband and wife had both been found guilty of adultery, and the husband of aggravated cruelty also, it was held that a decree of judicial separation, on the ground of such cruelty, could not be made in favour of the wife (a). And where a petitioner's desertion of his wife conduced to her adultery a decree of judicial separation was refused (b). Summary Jurisdiction. — By the Summary Jurisdiction (Married (t) 20 & 21 Yict. c. 85. Astley v. Astley (1828), 1 Ha-g. E. E. (u) Oughton, Ordo Judiciorinn, tit. 714; Timmiiigs v. Timmiiigs (1792), 214, 1. 3 Hagg. E. E. 82. (/•) Pothier, ad Pand., ix. (ed. 1821), (x) Drummond c. Drummond (1861), 24, 2, 12. The passage deals, how- 2 S\v. & Tr. 269. ever, with, dower. See judgment of (;/) Collected and examined bj' Sir Sir Gorell Barnes, P., in Hodgson v. Gorell Barnes, P., in Hodgson r. Hodgson, [1905] P., at pp. 2h8, 239. Hodgson, nhi sitj>7-a, pp. 239 et seq. {w) See Beeby r. Beeby (1799), 1 (a) Otway v. Otway (1888), 13 P. D. Hagg. E. E. 790; Forster i-. Forster 12, 141. (1790), 1 Hagg. C. E. 144; Proctor i'. (i) Hodgson v. Hodgson, [1905] Proctor (1819), 2 Hagg. C. E. 299; P. 233. 876 DIVORCE EXCxLISH LAW. Women) Act, 1895 (c), a married woman, "whose husband has been convicted of an aggravated assault upon her, or of assault upon her, coupled with a fine of £5, or imprisonment for more than two months, or has deserted her or been guilty of persistent cruelty, causing her to leave and live separate from him, or of wilful neglect to provide reasonable maintenance for her or her infant children, whom he was bound to maintain, causing her to leave and live separately from him, ma}^ apply for and obtain by summary pro- ceedings (a) a judicial separation ; (b) the legal custody of the children under sixteen ; (c) an order for payment by the husband of a weekly sum not exceeding £'2 (d). Adultery by the wife, unless condoned or connived at by the husband, or conduced to by his wilful neglect or misconduct {e),- is a bar to any remedy in favour of the wife (/). An order, when made, may be varied or discharged on "fresh evidence "(r/), a term meaning evidence which had not come to the knowledge of the party desiring to call it at the time of the hearing, or evidence of some thing which had occurred since the hearing (/<). The terms " desertion " and "cruelty " have practically the same meanings as in the law of divorce (?)• A separation order granted under the Summary Jurisdiction (Married Women) Act, 1895 (c), has the effect of preventing the continuance of desertion commenced prior to the granting of the order. Therefore, a deserted wife who obtains such an order within two years of the first desertion cannot subsequently obtain a divorce on the grounds of desertion and adultery (A:). In cases of judicial separation, permanent alimony, analogous to the maintenance which may be granted to a wife in cases of divorce (/), may be allowed to the wife {»i). In cases alike of divorce and of judicial separation, alimony pendente lite may be granted to the wife. (c) 58 & 59 Vict. c. 39.'s. 4. Wilson v. Wilson (1908), 24 T. L. 11. {(1) Ibi(/.,s.o. 250; Harriman v. Hurriman (1908), («) Cf. JJunlon r. Buidou, [1901] 24 T. L. E. 596 ; [1909] P. 123. r. 52. (/) See pp. 870—872, supra. (./') S. 6. (m) If the circumstances of the case df) ^- 7. require it, a settlement out of the (/() Johnson c. Johnson, [1900] P. -wile's property may be made for the !•'• benefit of the husband: Matrimonial (j) See ]>p. .SCI, .S(;5, ante. Causes Act, 1884 (47 & 48 Vict. c. OS), (/.•) Dod.l V. Dodd, [1906] P. 189; 8. 3 ; Swift v. Swift, [1891] P. 129. IRELAND — ISLE OF MAN. 877 Law of Ireland. — Daring the seventeenth and eighteenth cen- turies (/i) divorce a riiieulo was not recognised in Ireland. It was, however, granted by the Irish Parhament, and up to the Act of Union in 1800, nine divorce bills were passed and one rejected. After the Union the Imperial Parliament succeeded to the Irish. As already mentioned, the Matrimonial Causes Act, 1857 (o), does not extend to Ireland; but the Imperial Parliament (j>), in dealing with Irish divorce bills, acts on the same principle as was formerly applied to English divorce bills, namely (q), that the proceeding is in spirit a judicial, though in form a legislative, Act, " Whatever," said Lord Herschell, L. C, in Westropp's Divorce Bill (r), " may have been the case prior to the passing of the Divorce Act of 1857, I think that since the passing of that Act, whatever would justify a divorce and afford a legal ground for it according to the provisions of that Act, Avhere that Act jjrevails, will afford sufficient ground for an applica- tion to the legislature to grant a divorce in that part of the United Kingdom where the Act does not itself operate." The bill to dissolve the marriage must, as was the rule mutatis mi(t(t}idis under the old practice in the case of English bills, be founded upon a divorce a ineiisa et toro obtained in Ireland (s). In 1870, jurisdiction in cases of divorce a m&nsa et toro was transferred from the Ecclesiastical Courts to the Court for Matri- monial Causes and Matters (0, thence in 1878 {u) to the Probate and Matrimonial Jurisdiction of the High Court of Justice, and under the Supreme Court of Judicature (Ireland) (No. 2) Act, 1897 (r), to the King's Bench Division of that Court. Isle of Man (rr). — Divorce a rincnlo is only obtainable in the Isle of Man by Act of Tynwald, founded on a decree for judicial separa- tion (.r). The Chajicery Division of the High Court has jurisdic- tion in " matrimonial matters " (^), and acts on the principles on [n) See, generally, Eoberts' Divorce No. 177. Bills in the Imperial Parliameut, pp. {t) 33 & 34 Vict. c. 110, ss. o, 7. 9 et seq. ; Wheeler, Practice of Private ('/) 40 & 41 Vict. c. 57, ss. 21, 34. Bills, p. 210. (i') 60 & 61 Vict. c. 66, s. 5. (o) 20 & 21 Vict. c. 85. See p. 863. (ov) This account-, has been revised ( p) There were five Divorce Acts in by Mr. G. A. Ring, Attorney -General 1905, one in 1906, and five in 1907. of the Isle of Man. ((/) Shaw r. Gould (1868), L. E. (x) See, e.jr., Goldsmith Divorce Act, 3 E. & I. E., per Lord Westbury, at 1887. pp. 84, 85. {y) Ecclesiastical Civil Judicature {>•) (1886) 11 A. C, at p. 297. Transfer Act, 1884, s. 49. (s) See Eoberts, p. 17 ; and St. O. 878 DIVORCE — BRITISH DOMINIONS. which the Ecclesiastical Court theretofore acted (^). Decree for judicial separation is substituted for divorce a mensa ct tow (a). The procedure and powers of the Court are similar to those of the Divorce Division in England dealing with such cases (i). The Married Women's Protection Acts, 1897 (c) and 1905 {d), proceed on tlie lines of Imperial legislation. Channel Islands.— Law of Jersey. — There is no divorce in Jersey. Although Jersey is in the diocese of Winchester, the Bishop of Winchester had, under the ecclesiastical law applicable to Jersey, no original jurisdiction in matrimonial causes there. Jersey is not, therefore, to be deemed in England for the purposes of the Divorce Act, 1857 (e), and is exempt from the operation of that enactment (./). Guernsey. — There is no divorce, but separations quant au.r hicns by the Court are not infrequent. r Canada. — Divorce is one of the " enumerated subjects " within the exclusive legislative autliority of the Federal Parliament of the Dominion of Canada (g), but no general law has been passed. Since the Confederation of 1867, accordingly, the Provinces of Canada have had no jurisdiction to create a Divorce Court or to legislate in any way concerning the subject of divorce. By the British North America Act (//), however, all laws in force in Canada, Nova Scotia, or New Brunswick at the Union shall continue as if the Union liad not been made, subject, nevertheless, to be repealed, abolished, or altered by the Parliament of Canada or l)y the legislature of the respective Provinces according to the authority of Parliament or of that legislature under the Act. The power of the Dominion Parliament in the matter is, moreover, cut down by the exclusive power of each Province to legislate as to the solemnisation of marriage within its territory (i). The statutes in force in respect to divorce in Nova Scotia, New Brunswick, Prince Edward Island, and British Columbia at the time of their incorporation into the Dominion have not been rej;)ealed and are still material by virtue of the j^rovision above referred to. No Divorce Court has been created by the Federal Parliament, and, save as hereinafter mentioned in some of the Provinces, no (z) S. 50. (/) Per Sir E. Phillimoie in Le (a) Ibid. Sueur v. Le Sueur (187G), 1 P. D. 139, (b) Ss. 52 it srq. at p. 140. (c) GO Vict., 18'.)7. (g) 3i. N. A. Act, s. 91 (26). (d) 5 Kflw. VII., 1905. {h) Ibid., 8. 129. (e) 20 & 21 Vict. c. 85. (t) Ibid., s. 92 (12). CANADA. 879 divorce for cause subsequent to a marriage can be obtained in Canada except by an Act of the Dominion l*arliament. The func- tions of the Canadian Senate with respect to divorce legislation are different from those with respect to other private bills. At every Session of Parliament a Committee of Senators is ap[)ointed, which is called the Select Committee on Divorce, to whom all petitions and bills for divorce after the prescribed advertisement and notice for six months are referred. When the bill is read a second time it is referred to this Committee, which hearsthe evidence and discharges the judicial functions conferred upon it by the rules of the Senate. After the bill is passed by the Senate it is sent to the House of Commons for consideration there. With a few exceptions of early date, there is no instance in which a divorce has been awarded by Parliament without proof of adultery (Ic) . Parliamentary divorces are rare ; from 18G8 to 1909 one hundred and forty divorces have been granted. Of these a small proportion are from the Province of Quebec. Up to the present time it is believed that there has been only one case of a divorce between Ptoman Catholics being granted. Ontario. — No power to dissolve marriage has ever been conferred upon the Courts of Upper Canada or Ontario by legislation. To dissolve a marriage once validly solemnised is not of judicial but of legislative competence in that Province (/). The Courts, however, may deal with the marriage contract as a civil contract, and if void ah initio by reason of fraud or duress may give a judgment of nullity (//(). By recent enactment, moreover, the Higli Court of Justice is given power to declare null marriages, though otherwise regular, in case either of the parties is under eighteen and the statutory con- sent has not been obtained, provided there has been no consumma- tion. Notice of trial must be given to the Attorney-General, who may intervene at any stage (n). Nova Scotia. — There is a Court of Divorce and Matrimonial Causes in Nova Scotia, which has power to dissolve a marriage for impotence, adultery, cruelty or relationship within the degrees prohibited by 32 Hen. VHI. c. 38. The Court has by statute the power of the Court for Divorce and Matrimonial Causes in England,. (/i) Gemmill on Divorce in Canada, 18 0. E. 296. p. 49 ; and see this work generally for (m) Ibid. further information. 00 1907, Ont. c. 23, s. 8; 1909, c. G2 (l) Lawless v. Chamberlain (1889), (marriage of minors). 880 DIVORCE BRITISH DOMINIONS. and the procedure is modelled as far as possible upon thei^rocedure of that Court. The Court may pronounce such determination as it may think fit on the rights of the parties to curtesy or dower. An appeal lies from the decision of the Judge in Ordinary to the Supreme Court of Nova Scotia (o). New Brunswick.— The New Brunswick Act of 1860 (23 Yict. c. 37) vested all the jurisdiction in respect of suits, controversies, and questions concerning marriage and contracts of marriage and divorce both from the bond of matrimony and sej^aration from bed and board and alimony in a Court of Eecord called " The Court of Divorce and Matrimonial Causes." This jurisdiction is continued by the Consolidated Statutes (j^). The grounds for divorce a vinculo are limited to impotence, adultery, and consanguinity within the degrees prohibited by 32 Hen. VIII. c. 38. A divorce on the ground of adultery does not affect the legitimacy of the issue of the marriage. Where the divorce is granted because of adultery the wife is not barred of her dower or the husband deprived of his tenancy by the curtesy unless expressly so adjudged and determined by the sentence of divorce (q). Prince Edward Island. — This Province was admitted into the Confederation in 1873 on the same terms as if it had been one of the Provinces originally united (qq). By statute 5 Will. lY. c. 10, the Lieutenant-Governor and Council are constituted a Court for hearing all suits concerning marriage and divorce in Prince Edward Island, with power to the Lieutenant- Oovernor to ajipoint the Chief Justice to preside in his stead. The statutory grounds are impotence, adultery, and consanguinity within the prohibited degrees. A divorce does not illegitimise the issue, nor does it bar dower nor curtesy unless expressly so provided in the sentence of divorce. These powers, however, are dormant, and are never exercised in this Province. British Columbia. — Under the Ordinance of 1867 introducing English law as the same existed on November 17th, 1858, into British Columl)ia, jurisdiction to exercise the relief and powers given by tlio Imperial Act of 1857 has been assumed (r), and is {()) The governing Act is E. S. N. S., (7) I hid., s. 'Sd. .'{rd serioH, c. 126, rejjriuted iu E. S. (77) yeo Jiurge, vol. i. 228. N. S. (1900), ii., p. 862. (,) Seo 11. S. li. C. (1897), c. 62. (p) E. S. N. B. (ino.'J), c. 11.5, s. 2. AUSTRALIA — NEW SOUTH WALES. 881 exercised by the Supreme Court of British Cohinibia, and this assumption of jurisdiction, though its legahty was the subject o£ some doubts, has recently been upheld by the Privy Council (s). Manitoba, Alberta, and Saskatchewan, North-West Territories. — As these Provinces have been admitted to the Confederation since 1867, there is no Provincial legislation on the subject and no Divorce Courts in these Provinces or in the North-West Territories. Quebec. — In the Province of Quebec there is no Divorce Court. From the foregoing summary it appears that adultery is the sole- ground of divorce in the Provinces which have Divorce Courts, except Nova Scotia, where cruelty is also a ground, though this is very rare in practice, and in British Columbia, where besides adultery of the husband cruelty or desertion is also necessary for a divorce. The other grounds mentioned above are really causes for which nullity is pronounced by the Court. Newfoundland. — There is no provision for divorce in Newfound- land and no Court in that Colony has power to grant divorce. Australia (t). — The Parliament of the Commonwealth has power,. but not exclusive power, to make laws with respect to " divorce and matrimonial causes ; and in relation thereto, parental rights and the custody and guardianship of infants " {a). No such legislation has as yet been passed. New South Wales. — Jurisdiction in matrimonial causes is con- ferred on the Supreme Court (/>), and executed by a Judge of that- Court appointed in that behalf {c). In suits (d) other than for disso- lution of marriage the Court is to act on the principles and practice followed by the Ecclesiastical Courts in England prior to the Divorce Act, 1857 (e). The remedies recognised by the law of New South Wales are restitution of conjugal rights (/'), divorce, and judicial separation." Restitution of Conjugal Rights. — A decree for restitution of con- jugal rights is not enforceable by attachment (f/) ; but failure to (s) Watts and Att.-Gen. for British c. 12), s. 9, ch. i., pt. v., ss. 51 (xxii.),, Columbia r. W^atts, [1908] A. C. 52. 57;3_ (h) No. 14 of 1899, s. 4 (1), (2). (/) This account has been revised by ('•) Ibid, s. 4 (;}). Mr. F. Fitzgerald, of the New South ('?) Il>id., s. 5. Wales and Fu-lish Bars. (e) 20 & 21 Vict. c. 85. ((,) Commonwealth of Australia (/) No. 14 of 1899, s. 6. Constitution Act, 1900 (63 & 04 Vict. ((/) Ibid., s. 7 (2). M.L. 56 882 DIVORCE BRITISH DOMINIONS. comply with such a decree is equivalent to desertion without reasonahle cause ; and a suit for dissolution of marriage or judicial sej^aration may be instituted in respect thereof (h). Divorce. — Any husband may petition for divorce on the ground of his wife's adultery (i). Any husband who has been domiciled in New South Wales for three years at the time of the institution of the suit, unless such domicil has been resorted to for the purpose of in- stituting it, may also petition for divorce on the following grounds : (a) Desertion of him by his wife without just cause or excuse for three years; (b) her habitual drunkenness and neglect of her duties for three years ; (c) that, at the time of the presentation of the petition, the wife had been imprisoned for three years, and was still in prison, under a commuted sentence of capital punishment, or of seven years' penal servitude or more ; (d) that, within one year of the presenta- tion of the petition, the wife had been convicted of the attempted murder of her husband, or of assault with intent to cause him grievous bodily harm ; (e) repeated assaults on the husband by the wife within one year previously (A-). Any wife may petition for divorce on the grounds of her husband's (a) incestuous adultery ; (b) bigamy with adultery ; (c) having committed rape, sodomy or bestiality ; (d) adultery, coupled with such cruelt}^ as would have ^- entitled her to a divorce a meiisa et toro prior to the Divorce Act, ■s 1857 (/), in England (incestuous adultery and bigamy have substantially the same meaning as in English law (//;)) ; (e) adultery, coupled ^Yith desertion for three years ; (f) adultery, where the husband is domiciled in New South Wales at the time of the institution of the suit {)i). Where the wife has been domiciled in New South Wales for three years at the time of the institution of the suit (unless such domicil has been acquired for the purj)oses of the suit), she may petition for divorce on the grounds of her husband's (a) desertion witliout just cause or excuse for three years (the wife's domicil is not lost because the husband has acquired a foreign domicil) ; (b) habitual drunkenness and either desertion or cruelty over a period of three years ; (c) imprisonment as in the case of the wife; (d) frequent convictions for crime within live (;<) No. H of 1899, 8. 11. (/) 20 & 21 Vict. c. So. (t) Ihiil, 8. 12. (to) No. 11 of 1S99, s, 14. (1() Ihi'l., H. i;}. («) Ihi(i., p. 15. np:w south walks — jujjicial nepamation. 883 years, and imprisonment in the aggregate for three years, coupled with the fact of the husband's having left his wife habitually (while imprisoned) without means of support; (e) attempted murder of, or assault, with intent to cause grievous bodily harm, on, the wife ; (f) repeated assaults on the wife as above {<>). There are provisions, analogous to those of the English Divorce Acts, as regards absolute ( p) and discretionary (q) bars ; decrees absolute (?■) and nisi (s) ; re-marriage after decree (0 ; joinder of co-respondents (») ; damages {a), except that a petition for damages alone is apparently not recognised, and no damages are recoverable for an act of adultery committed more than three years before the filing of the petition {b) ; grant of alimonj'- (c) ; custody and main- tenance of children (d) ; ordering (e) and variation (/) of settlements. The Court may set aside transactions (//) and restrain sales of real property (/() made with intent to defeat the exercise of its powers as to alimony and settlements. Judicial Separation. — Any husband or wife may petition for judicial separation on the ground of adultery, or cruelty, or deser- tion without cause for two years or upwards (i). Where domiciled in New South Wales for three years at the time of the institution of the suit (such domicil not having been acquired for the purpose of the suit) the husband and wife may {h) respectively petition for judicial separation on the grounds recognised by ss. 13 and 16 (/) of the Ordinance. The petition may be dismissed if the petitioner's own conduct has induced or contributed to the wrong complained ot{m). A decree for judicial separation may be made in all cases in which (a) a decree for divorce a mensa et ioro could have been obtained under the practice in England prior to the Divorce Act, (o) No. 14 of 1899,*. 16. {h) Ibid, s. 54 (1). \p) Ibid., s. 18. (c) Ibid., ss. 39—46. [q) Rid., s. 19 (2). [d) Ibid., ss. 60—62. (?•) Ibid., ss. 22, 23. (e) Ibid., s. 55. (s) Ibid., s. 21. A notice is to be (/) Ibid., ss. oB, 57. indorsed on every decree nisi that the (g) Ibid,, s. 58. petitioner or respondent, contracting (//) Ii)id., s. 59. marriage before the decree has been (/) Ibid., s. 31. made absolute, will be guilty of (/■-) Ibid., s. 32. bigamy : s. 27. (/) See p. 882, n. (/.•), and above, [t) Ibid., s. 28. n. (o). {u) Ibid., s. 24. (m) No. 14 of 1899, s. 35 (1). (a) Ibid., 6. 52. 66—2 884 DIVORCE — BRITISH DOMINIONS. 1857 ; or (b) the case for dissolution of the marriage has failed, but a case for judicial separation has been established (»)• The effect of a decree of judicial seiDaration is the same as that of a decree for divorce a mensa et toro in England before the Act of 1857 (o). The wife becomes a feme sole as regards her after-acquired pro- perty (jy) and as regards contracts, torts, injuries, suing and being sued (q). The husband is liable for necessaries if alimony decreed is not paid (r). The wife may at any time, notwithstanding judicial separation, join with her husband in the exercise of joint powers (s). Queensland. — The Matrimonial Causes Jurisdiction Acts, 1864 {t) and 1875 (u), are similar, but contain no provisions analogous to those of the New South Wales Act, 14 of 1899, as to the special grounds of divorce and judicial separation open to husbands and wives who have been domiciled for three years, in that Colony. A petition for damages against a co-respondent may be limited to that object (x). South Australia. — The Matrimonial Causes Act, 1867 (y) provides, on the lines of English legislation, for judicial separation (z), divorce a vinculo (a), and damages against a co-respondent {h), and also for the granting of protection orders to married women (c). A wife obtaining a protection order is in the same position as if she were judicially separated (d). No. 664 of 1896 is an enactment on the lines of the Imperial Summary Jurisdiction (Married Women) Act, 1895 0'). Tasmania. — The law is generally the same as in Queensland ( /'). Victoria. — The Marriage Act, 1890 (fi), is similar to the other («) No. 14 of 1899, 8. 33. (c) IhuL, s. (5. (o) Ihid., 8. 37 (1). {d) Ibid., 8. 9. (lO Ihul, 8. 37 (2), (5). (e) 58 & 59 Vict. c. 39. (q) Ibid., 8. 38 (1), (2). (/) Matrimonial Causes Acts, ISfiO (r) Ibid., 8. 38 (3). (24 Vict. No. 1) ; 1804 (28 Vict. No. 4) ; («) Ibid., 8. 38 (4). 1865 (29 Vict. No. 19) ; 1874 (38 Vict. (0 28 Vict. No. 29. No. 13) ; and see 1873 (37 Vict. No. (») 39 Vict. No. 13. 13), and 1907 (7 Edw. VIZ., No. 22). (r) Act of 1864, 8. 28. (,,) No. 116G of 1890, amended as to (.'/) No. 3 of 1867. procedure on making decree absolute (z) Ss. 11—23. by the Marriage Act, 1906 (No. 2062 (a) Pe. 24—40. of 1906). (t) Ss. 41—4 1. VICTORIA WESTERN AUSTRALIA. 88a Australian Acts as to the grounds and effect of judicial separation {It) and (to some extent) to the law of New South Wales as to the grounds of divorce (/) and damages (k). Thus the grounds for a divorce, which is available to any married person who at the time of the institution of the suit or other proceeding has been domiciled in Victoria for two years and upwards, are : (1) deser- tion during three years without just cause or excuse ; (2) habitual drunkenness, with cruelty, in the case of a husband, or neglect of domestic duties in the case of a wife; (3) imprisonment for three years or being in prison under a commuted sentence for a capital crime, or under sentence of penal servitude for seven years or upwards, or in the case of a husband within five years frequent convictions for crime and an aggregate term of imprisoiniient for three years or upwards, or leaving his wife habitually without support ; (4) violent assault, &c., within a year previously ; (5) adultery of the husband in the conjugal residence, or with circumstances of aggravation, or repeated adultery. If the petitioner's habits or conduct induced or contributed to the wrong complained of, the petition may be dismissed. The term " domiciled person " includes a deserted wife who was domiciled in Victoria at the time of desertion, and such a wife retains her Victorian domicil although the husband has since acquired a foreign domicil ; but a person cannot petition who has resorted to Victoria for that purpose only(/). The Act makes provision for the grant of protection orders to married women (»(). If a husband is convicted of an aggravated assault on his wife, the Court may make an order that the wife is not bound to cohabit with her husband. Such an order has the force and effect of a decree of judicial separation. The order may provide for weekly payments by the husband to the wife and give her the custody of children under sixteen, but the making and the continu- ance of the order are dependent on the wife's conduct (n). Western Australia. — The law is similar to that of Queensland (o). 34 Vict. No. 7 (1871) provides for the settlement of property, and monthly or weekly payments by way of maintenance, in favour of (h) No. 1166 of 1890, ss. 61—73. (m) No. 1166 of 1890, ss. 55—59. (i) Ss. 74—91. (n) S. 60, (k) Ss. 93, 94. {<>) 1863 (27 Vict. No. 19). (/) P. P. 1894, 144, 145, p. 19. 886 DIVORCE — BRITISH DOMINIONS. the wife. 43 Yict. No. 9 (1879) gives the Court power to settle pro- perty on the wife, though there are no children of the marriage (j:»). No. 10 of 1896 corresponds to the Imperial Summary Jurisdiction (Married Women) Act, 1895 (q). New Zealand. — Act No. 18 of 1904 is substantially the same as the New South "Wales Act, No. 14 of 1899, the provisions of which have been summarised above (r). No. 78 of 1907 adds, as grounds of divorce in the case of domiciled persons — conviction of the respondent of an attempt to take the life of any child of the petitioner or respondent (s) or of the murder of such a child, or that the respondent is a lunatic or person of unsound mind, and confined as such under the lunacy law for a period or periods not less in the aggregate than ten years, within twelve years immediately preceding the filing of the petition and unlikely to recover (t). If the ground of a petition is lunacy or unsoundness of mind, it is the duty of the Solicitor-General to protect the interests of the respon- dent (t/). Ordinance 15 of 1896 gives the husband as well as the wife the right to obtain a protection order. "West Indies. — There is considerable diversity between the different legislations, some admitting divorce on similar terms to the law of England, while others do not recognise it. In Jamaica the law is similar to the statute law of England (a). The divorce jurisdiction is vested in the Supreme Court (7*). Ordi- nance 27 of 1881 extends the law of Jamaica to Turks and Caicos Islands and to the Cayman Islands. Ordinance 22 of 1896, as amended by No. 13 of 1897, deals with the divorce of Indian immigrants. BaLama Islands. — The Supreme Court has the jurisdiction of the Divorce Court in England (c). The Chief Justice is Judge Ordi- liSiYy, and the law and practice in England for the time being, so far as ai)itlical)lc, are to be followed (^O. Leeward Islands.— Ordinance 2 of 1880 (r) confers on the Supreme Court tbe jurisdiction of the ])ivorce Court in England ; and (70 S. 2. {h) No. 24 of 1879, s. 20. (7) 58 & 59 Vict. c. 39. (c) Supreme Court Act, 1896 (59 (r) Supra, pp. 881—884. Vict. c. 26), s. 32. («) S. 3 (1). {(I) S. 35 ; and sec Mntrimoiiial (0 S. 3 (2). Causes Act, 1879 (42 Vict. c. 6). (n) S. 4. ((■) S. 35. (o) Seo No. 14 of 1879. wi<:sT INDIES. 887 Ordiuanco 7 of 1906 (_/') provides that this jiu-isdietion is to be exercised in accordance Avith the law and practice for the time being in force in England. In British Honduras, though the Supreme Court has jurisdiction "over matrimonial and divorce cases under any laws made, or to be made, in such matters " (//), there does not appear to be any such legislation (/<). No. 6 of 1897 corresponds to the Imperial Summary Jurisdiction (Married Women) Act, 1895 (i). In Trinidad and Tohago (A) the jurisdiction of the High Court of Justice in England as a Court for divorce and matrimonial causes is expressly withheld from the Supreme Court. On the other hand, in Barbados and Bermuda (/), Grenada (?») and St. Vincent (h), divorce a vinculo is not recognised. In Barbados, Act 13 of 1900 provides for the protection of the property of, and the grant of alimony to, deserted wives. In Bermuda, Ordinance 4 of 1886 (o), "in the absenceof any divorce jurisdiction," gives the Court of Chancery jurisdiction over claims for alimony, &c., on behalf of married women deserted by, or compelled by cruelty or otherwise to leave, their husbands. This jurisdiction is to be exercised in accordance with the principles followed by the English Ecclesiastical Courts (p). No. 9 of 1894 enables a married woman, in the case of aggravated assault upon, or habitual cruelty towards, her to obtain a separation order against her husband, with alimony and the custody of children under ten years of age (q). The law of St. Lucia on this subject is contained in its Civil Code. ]\Iarriage is indissoluble during the lifetime of the spouses, but separation from bed and board is recognised. Tbis cannot be obtained by mutual consent, but only for (1) adultery by either spouse ; (2) outrage, ill-usage, or grievous insult, the sufficiency of which is determined by the Court, taking into consideration the f f\ g_ 3, the jurisdiction of the Supreme Court, ((/) Consolidated Laws, pt. v., c. 8, confers on it no jurisdiction in divorce s. 30. ^ vinculo. (/)) S. 29 expressly confers on the (m) No. 28 of 1896, s. 6. Supreme Court the jurisdiction of the {n) No. 14 of 1880, cl. ix. English Court of Probate only. (o) Continued in force indefinitely (/) 58 & 59 Yict. c. ;J9. by No. 1-1 of 1889. (A-) Laws of Trinidad, i., 3H4, No. 34, {}>) No. 4 of 1886, s. 5, s. 16 (Ordinance 28 of 1879). {q) S. 10, (/) Ordinance 4 of 1905, defining 888 DIVORCE BRITISH DOMINIONS. circumstances of the parties and their condition in Hfe ; but the Court may in this case, although the cause of action is estabHshed, refuse to grant immediate separation and may suspend judgment till a further day, in order to enable the parties to come to an understanding or reconciliation ; (3) for refusal by the husband to receive his wife or to furnish her with the necessaries of life according to his rank, means, and condition. The action for separa- tion is brought, tried, and decided like any other civil action, except that the allegations cannot be admitted, but must be proved before the Court. It may be extinguished by reconciliation, when the suit is dismissed. Upon dismissal the common life must be resumed within the time fixed by the Court. During the action for separation provisional measures are available for the care of the children and alimony of the wife ; and alimony may be accorded by the Court to either of the separated parties who has not sufficient means of subsistence, payable by the other according to their condition and circumstances. The effect of separation is to relieve the j^arties from common life and carries with it separation of property and dissolution of the community of property (r). No. 3 of 1902 is analogous to the Imperial Summary Jurisdiction (Married Women) Act, 1895 (s). Falkland Islands. — The Supreme Court has the jurisdiction of the Divorce Division in England, subject to the Order in Council of November 28th, 1899 (a). No. 4 of 1880 extends to the Colony the Imperial Matrimonial Causes Act, 1878 (/;). No. 8 of 1886 provides for the grant of protection orders as in England, In St. Helena the Governor, as Chief Justice, has the jurisdiction of the Divorce Court in England (r). In Fiji the Supreme Court has the jurisdiction of the Divorce Division in England (d). Ordinance 3 of 1899 applied the Matri- monial Causes Act, 1884 (c), mutatis )iiut<(ndis, to the Colony. Ordinance 3 of 1883 deals with suits for the dissolution of marriage where the parties are natives or half-castes (./'). (r) See arts. 156—185. (c) Order in Council of May 1st («) 58 & 59 Vict. c. 39. 1890 ; Rules and Regulations of July (m) No. 4 of 1901, s. 9 (5) ; No. 9 of 14th, 1891. 1908, 8. 7, extends the jurisdiction of () 58 & 59 Vict. c. 39. 542; Ordinance No. 5 of 1867, ( 2O No. 10 of 1905, s. 2. art. 46. 890 DIVORCE BRITISH DOMINIONS. old jurisdiction of the English Ecclesiastical Courts of Justice in matrimonial causes (r/). Mauritius. — In Mauritius divorce is now regulated by local Ordinances (a). The grounds of divorce, which are the same for both husband and wife, are these : (a) Bigamy, incest, and adultery (h) : (b) wilful desertion for five years (c) ; (c) continued absence of either spouse for ten consecutive years, without news or information whether he or she be alive or dead (d) ; (d) acts of cruelty or brutality, scevh'ue, or outrage of a serious nature {injures graves) (c) ; (e) sodomy or bestiality (/) ; (f) condemnation of either party to penal servitude or imiDrisonment with or without hard hxbour for a period of not less than five years {/). Divorce by mutual consent is not recognised (g). The procedure resembles that under English legislation, except that, before leave to sue is given, a reconciliation of the parties is attempted to be brought about l\y the Judge in Chambers (h). Eeconciliations are seldom effected, but there have been cases in which the Judge has insisted on a postponement of the proceedings in order to give the parties time for reflection. The Court is not l)Ound to pronounce a divorce if there has been, on the part of the petitioner, connivance or collusion, or unreasonable delay in instituting or prosecuting the suit, or adultery, cruelty, or desertion, or behaviour conducing to the offence complained of (i). It will be observed that the distinction, recognised by English law, between alisolute and discretionary bars to divorce does not exist in Mauritius. Every judgment for divorce is in the first instance a decree nisi .- and an interval of three months must elapse before it can be converted into a decree absolute (k). At any time during the progress of the suit, or ])ofore the decree absolute, the Procureur- General, who fulfils in this respect the functions of tlie King's Proctor in P^ngland, may intervene, and show cause against the divorce {k). Any person having been a party to any judicial (7) No. 30 of 1907, s. 9 (0); and (/;) No. 14 of 1S72, s. 1. f^ciiUy V. .Scully (1890), 4 Kyshe, G02 ; {,■) S. 2. and see Burge, vol. i., jx 196, and {il) S. 3. pp. 194 (as to Labuan), 195 (sjjecial (e) S. 4. law.s ai>i)licablo to particular races and (/") S. 5. creeds); also No. 25 of 1908, as to {) S. 4. {vi) S. 1 (3). (c) S. 0. (») No. 37 of 1882, 8. 5. { Kentucky (r), Louisiana (»'), Maryland (.a;), Michigan (_(/), Minnesota (^'), Montana, New Jersey (rt), New York {h), North Carolina (c), Pennsylvania {d), Ehode Island (e), Tennessee (/), Vermont (r/), Virginia (//), West Virginia (/), Wisconsin (,/). Divorce a vinculo only is recognised in Arkansas (A), California, Colorado (/), Connecticut {ni), Florida {aa), Illinois {hh), Indian Terri- tory {cc), Iowa, Kansas, Maine, Massachusetts {dd), Mississippi {ee), Missouri, Nebraska (.//'), Nevada (f/r/), New Hampshire Qih), New Mexico (/O, North Dakota (j/), Ohio (/Jt), Oklahoma Territory (//), Oregon (m?;i). South Dakota (?in), Texas (00), Utah (j^p), Washing- ton ((7^),Wyoming (;t). Sejmrate actions for alimony ormaintenance may be brought in California, Colorado, low'a, Kansas, Maine, Missouri, Ohio. In South Carolina no divorce for any cause is allowed {ss). Jurisdiction. — According to the different statutes of the States of the Union, jurisdiction to grant divorce can be exercised only when (?i) Code of Ala., ss. 1485 et seq. (A) Baumau v. Baumau (1857), 18 (0) Code of Alaska, 1900. Ark. 320. (p) Code of Arizona. (/) Gen. Stats. (1883), c. 32. {q) Laws of 1891, xix., p. 480. (m) Gen. Stats. 1902, s. 4551. (r) Code, s. 966. {aa) Thompson's iJigest, 1881. (s) Code of Ga., 1895. (hh) Hirsh, 705. [t) Civil Code, 1901. (cr) Indian Territory Statutes, 1899. {u) Burn's R. S., ss. 1036—1061. (dd) Revised Laws, 1902. (f) Ky. Stat., c. 68, art. 11. (ee) Code, 1892. (ty) Civil Code, 1870. (/) Compiled Stat., 1881. (.r) Code, 1888, art. 16. (gg) Code, 1899. {y) Compiled Laws, 1897, s. 8624. (/;//) P. S., c. 175. (z) Laws, 1895, c. 40. (n) Compiled Laws, N.M., 1897. (a) Laws, 1902, p. 502. Uj) Civil Code, 1899. (b) Civ. Pro. Code, ss. 1756-1762. (JcJc) E. S., 5699. (c) Laws, 1899, c. 490. (JI) Oklahoma Code, 1895. (d) Act, April 25th, 1905. (Him) Code, 1902. (e) Act, April 2nd, 1902. {nn) Code, 1902. (/) Code M. & v., s. 3308. (oo) Rev. Stat., Texas, 1899. (g) Vermont Stat., 1904. {pp) Rev. Stat., 1898. (h) Ss. 2257, 2258. {qq) Code Civ. Proc. 5716. (t) Act 1882, 0. 60. (n-) Stat. Wyoming, 1899. (./) Ss. 2356, 2357. - (s.s) 16 Statutes, 719. 894 DIVORCE — UNITED STATES. one of the parties is Jioiid fide domiciled in the State in which the divorce is sought, the wife for this purpose having the right to acquire a separate domicil from her hushand if his conduct furnislies grounds for divorce ; in some, the particuLir period of required residence is defined ; in others, the laws are silent on these points, but hona fide domicil by inter-State law and international law, in such case, is necessary' to confer divorce jurisdiction (a). It is the rule in all States of the Union, upon this point (h), that a wife may acquire a domicil separate from her husband in a case where he has acted towards her in a manner that would entitle her to an absolute divorce, or in a case where there has been abandon- ment of the wife, or the husband's conduct has been such as to compel her to leave him, or in cases where the parties live apart under a judicial separation. The reason of this exception to the general rule of the wife's domicil being that of the husband is, that the theoretic identity of person and interest between husband and wife, and the pre- sumption arising that the home of the one is the home of the other, is destroyed when the husband's conduct has been such as to render it proper for her to seek relief from her obligations to her husband (<•). Grounds of Divorce or Nullity. — Duress and Fraud are grounds of divorce or nullity in all the States and Territories, but in some there are statutes conferring jurisdiction to annul marriages in specified Courts (d). Impotence and Physical Incapacity are grounds of divorce or nullity in every State and Territory. Mental Incapacity at the time of the marriage is a ground of divorce or nullity in every State and Territory, there being no real consent in such case. Insanity arising after Marriage is a ground in AVashington ; " hopeless insanity " in Pennsylvania (r) ; and in Utah where judicially declared insane five years })rior to action. (a) See Burge, 1st ed., i., p. (591. tnitive, not exhuustivo. A law was (6) See Burge, vol. ii., 54, 55. enacted in Pennsylvania in 1906autho- (c) Hunt V. Hunt (1878), 72 N. Y. rising the Governor to appoint Com- 217. This practice of the American missioners to codify the divorce laws, Courtsha8been(Annytager. Att.-Gen., and to co-operate with other States in [1906] P. i;j5) recognised in England. securing uniformity of divorce legis- (igost of Comp. Leg., viii., p. 27G. the Divorce Laws of tlie United States. (e) Jour. Comp. Leg., viii., p. 276. Tlie instances given above are illus- GROUNDS OF DIVORCE OR NULLITY. 895 Adultery and Bigamy are causes for divorce a viucido in every State and Territory where divorce is allowed; so also are conviction of crime and cruelty, except in District of Columbia, Maryland, New Jersey, New York, North Carolina. In Virginia and West Virginia felony is a cause. Desertion or Abandonment are causes for divorce a vincalo when they have existed for varying periods — in some States fixed by statute and in others not — from one to five years in every State and Territory except New York and North Carolina, and in the District of Columbia. Vicious Conduct is a ground for a divorce a mensa et toro in Maryland. Gross misbehaviour, neglect of duty, and wickedness are grounds in Kansas ; in Ohio if continued for three years ; in Rhode Island " if repugnant to and in violation of the marriage covenant." Habitual Drunkenness is a ground in nearly all the States, unless contracted before marriage ; not, however, in Arizona, Maryland, New Jersey, New Y^ork, Pennsylvania, or Vermont (/). In Maine, ]V[assachusetts, and some other States, gross and confirmed use of opium or other drug is a cause. Non-support ofWife is a ground in Arizona (/'), California, Colorado, Vermont, Maine, Massachusetts, New Hampshire, Rhode Island. Personal Indignities rendering condition intolerable or life burden- some constitute a ground of divorce a vinculo in favour of the wife in Pennsylvania, and in favour of either spouse in Arkansas, Louisiana, Missouri, Oregon, Vermont, Wyoming. Turning a wife out of doors is a ground of divorce a mensa ct toro in Pennsylvania. So is " extreme cruelty," defined as " the infliction of grievous bodily injur}' or grievous mental suffering "(//). The vagrancy "of the husband is a ground in Missouri ; violent and ungovernable temper in Florida (//). There is no divorce for " incompatibility of temper" as is frequently stated in public prints. Public Defamation is a ground in Louisiana. Joining a religious sect holding a belief inconsistent with marriage is a ground in New Hampshire, Kentucky, Massachusetts. Ante-nuptial Pregnancy unknown to husband (_/') is a specific ground of divorce in Alabama, Arizona, Georgia, Iowa, Kansas, Kentucky, Wyoming, Oklahoma, Tennessee. (/) Hirsh, uhi eupra. [h) 14 Cj-cloprodia of Law and Pro- {g) Ibid, cedure, Gil — 627, 896 DIVORCE INDIA . Nonage (i) is a ground of divorce in Alabama, Alaska, Arkansas, Delaware, Georgia, New York, and most other States, except Florida, Oregon, Pennsylvania. Alimony may be granted in all States. The defences of connivance, collusion, condonation, and recrimi- nation, delay, and insincerity are generally in force (/,•)• Inter-State Recognition of Divorce Decree. — A decree of divorce rendered in accordance with the law of the forum of one State by a Court having jurisdiction over the subject-matter and the parties is valid in all other States (/), but in cases where service on a defendant is made personally outside the jurisdiction or by substituted service, there is not uniformity in admission by the several States of the validity of divorce of their own citizens by the Courts of another State (rt). Re-marriage (i). — In most cases the re-marriage of divorced parties is permitted. In Delaware, Louisiana, and Pennsylvania, a party found guilty of adultery may not marry the co-respondent. In South Dakota, and the District of Columbia, the guilty party may only re-marry with the petitioner. In Tennessee, the respondent guilty of adultery may not marry the co-respondent during the petitioner's life ; in Michigan, the Court may order that the guilty party may not re-marry within two years from decree, and dis- obedience is bigamy ; in Vermont, within three years under penalty of imprisonment. But a regular marriage outside the State granting such decree is held valid by other States, as such prohibitor}' statutes are deemed penal and without extraterritorial effect. SECTION Y. Laws of India, Burmah, China, Japan, and Siam. British India. — Hindu Law. — Divorce is unknown to the general Hindu law (A), but is allowed by custom in certain localities, and among certain low castes (r). Apostasy does not dissolve a (i) Hh-Hh, nhi .iitjivd. Mr. J. A. I'arratt, of I.ondoii, on (k) Bishop, ^lavr. aiul Divorce, vol. " Divorce Jurisdiction " ; Haddock v. ii.. l)o<.k ix. Haddock, 201 U. S. Rep. 562 (/) 14 Cyclopredia of 1 'loading and (190fi). Practice, 814. (/)) Kudonifte Dossee v. Joteeram (a) Ecp. Int. Law As.soc, at Port- Kolita (1877), I. L. E. 3 Calc. 305. land, !Maino (HMI7), p. 71), paper l)v (c) See Steele's Law and Custom of MUHAMMADAN LAW. 897 marriage (r/), but in a case of conversion to Christianity the unconverted spouse may withdraw from cohabitation, and then the convert may obtain a dissok^tion of the marriage under Indian Act XXI. of 1866. Except under that Act, a Court has no power to decree a divorce between Hindus. A husband is entitled to put away an unfaithful wife(e). The marriage bond is not thereby dissolved, but the wife loses all rights of inheritance to her husband (/), and on returning to amoral life is entitled only, at the most, to a bare subsistence (g). Muhammadan Law. — In Muhammadan law, three forms of divorce are recognised (/<). Talak, a divorce proceeding from the husband or from the wife or some third person by the husband's authority. Talak signifies severance, and this as between spouses may be consensual : Khula, or Mubarat, divorce by mutual consent ; and judicial divorce, on various grounds, which will be indicated immediately (i). Talak. — Talak divorce is effected by a declaration by the husband to the wife, either verbally or in writing (j), of a clearly expressed intention to terminate the union. This declaration may be made: (a) Once, in which case the divorce is revocable, but becomes irrevocable on abstinence from conjugal relations for three months; (b) three times during successive intervals of purity, there being no intercourse between the spouses during any of such intervals — this is irrevocable; or (c) three times at shorter intervals or even in immediate succession — this is irrevocable. Among the pre-Islamic Arabs abstinence by the husband from cohabitation for four months, in pursuance of a vow (ila), creates a Hindu Castes, pp. 168, 169; Eisley's 116 ; I. L. E. 5 Calc. 776. Tribes and Castes of Bengal ; Crooke's (g) See Honamma v. Timaunabhat Tribes and Castes of tKe North Western (1877), I. L. E. 1 Bom. 559; contra, Provinces and Oudh; Banerjee's Hindu Talu v. Ganga(1882), I. L. E. 7 Bom. Law of Marriage, 2ud ed., pp. 179 — 84; Nagamma v. Virabhadra (1894), 180,237,238,246. I. L. E. 17 Mad. 392. SeeEomaNath (fO Thapita Peter v. Thapita v. Eajonimoni Dasi (1890), I. L. E. Laksbmi (1894), I. L. E. 17 Mad., at 17 Calc, at p. 679. p. 239. {h) See Wilson, Dig., ss. 60 et seq. (e) Colebrooke's Digest, ii., p. 415. (') SeeMoonsheeBuzul-ul-Eabeemv. (/) Kery Kolitany v. Moneeram Luteefutoon-Nissa (1861), 8 Moo. Ind. Kolita (1873), 13 Ben. L. E. 1 ; App. 379. affirmed on appeal, Moniram Kolita (,/) Gouhur AH Kban v. Ahmed V. Kerry Kolitany (1879), L. E. 7 I. A. Khan (1873), 20 Calc. W. E. 214. M.L. 57 898 DIVORCE — INDIA. valid divorce, and it was allowed by the Prophet ; but this form of divorce is now obsolete (k). Neither duress nor intoxication will pre- vent a divorce from being effectual, but divorce by a lunatic or a minor is void. The remedy of talak divorce is not open to the wife unless by ante-nuptial or post-nuptial agreement with her husband (/). The power of pronouncing a talak divorce may also be delegated by the husband to a third person or to the wife herself. The rules above stated are those of the Hanifite School. Under the Shafeite system (m), an inchoate divorce cannot be set aside by renewed cohabitation ; an express declaration is necessary. A divorce pronounced under duress is null, and the husband's abstinence from cohabitation under an ila entitles the wife to demand a judicial divorce. Under the Shia system (n), intoxica- tion (as well as duress) renders a divorce null ; the divorce must be effected orally in the presence of two competent witnesses, unless the husband is physically incapable of making it ; and a marriage cannot be dissolved by three utterances of the words of repudiation in immediate succession. Khula Divorce. — In the Khula divorce the wife secures her free- dom by a consideration such as the surrender, in whole or in part, of her dower or other pecuniary claims on her husband. If there is no consideration for the release of her husband's rights, this form of divorce is termed Muharat. Where there is a failure of the agreed consideration, the divorce is not invalidated (o), and the husband cannot sue for restitution of conjugal rights, but ma}' plead the divorce as a defence to the wife's claim for dower. Judicial Divorce. — Either spouse may sue for divorce where there is what is known as an "option of puberty," i.e., where the marriage was contracted by a guardian other than a father or grandfather. The wife may obtain a divorce on the ground of her husband's impotence at the time of the marriage if unknown to her then ; Qt) Ameer Ali's Mahomedan Law, AH (1871), 10 W. R. 260; Ibrahim 2nd ed., vol. ii., 457. Mulla v. Euayehir Ruhman (1869), 4 (/) E.g., a stipulation that the wife Ben. L. R. (A. C.) 13; 12 Calc. W. R. should be entitled to divorce on the 460. husband marrying a second wife is (m) Wilson, as. 398, 399. valid : Badaranniesa Bibi v. Mafiattala (/<) Ibid., ss. 434 — 436. (1871), 7 Ben. L. R. 442 ; and see also (o) See Moonshee Buzul-ul-Raheem HamidooUa v. Faizunnissa (1882), I. v. Luteefutoon-Nissa (1861), 8 Moo. L. R. 8 Oalc. 327 ; Ashruf Ali v. Ashad Ind. App. 378, THE EFFECTS OF DIVORCE. 899 and (possibly) (p) on the ground that he has charged her, whether truly or falsely, with adultery. Actual physical cruelty on the part of the husband to the wife, if of such a character as to endanger her health or safety, will justify a wife in leaving her husband, and will afibrd a defence to an action by him for restitu- tion of conjugal rights {q). If the husband refuses to divorce a wife whom he treats in such a manner as to justify her in leaving him, he may be ordered to allow her monthly maintenance, unless he can prove that she is living in adultery. The wife retains her claims for unpaid dower and her rights of inheritance as against himC?-). The husband cannot obtain a judicial divorce from his wife on the ground of incapacity for intercourse ; in such a case he can, of course, exercise his ordinary right of divorce. Under the Shafei system the husband can obtain a divorce on the ground of his wife's impotence (s), and either spouse can obtain a divorce on the ground of the madness or leprosy of the other (s). The Effects of Divorce (t). — Further cohabitation between the parties is unlawful ; and if the wife has been divorced by words of repudiation thrice pronounced, the husband cannot re-marry her until she has been first married to another husband, and the marriage has been dissolved after consummation. For this pur- pose the fact of consummation cannot be j)roved by mere pre- sumption from the circumstances («). Among the Shias, re-marriage in this way cannot be legalised after the triple repudiation (.i-)- Immediately on the completion of her iddat, or at once, if the marriage was not consummated, the wife may marry again ; the husband is also free to take another wife, in place of the divorced one, on the completion of her iddat. If the marriage was con- summated before its dissolution, the wife is entitled at once to her unpaid dower, unless the divorce was by the wish of the wife her- self or due to her fault. If the marriage had not been consum- mated at the time of the divorce the husband is liable for half the dower, if specified. If no dower was specified, the wife is entitled (p) Baillie, vol. i., pp. 333 — 336. Moo. Ind. App. 551, aud p. 355, a7ite. But see Jaun Beebee v. Beparee (?') Wilson, s. 77. (1865), 3 W. E. 93. (s) Ibid., s. 401. {q) As to the meauing of legal (t) Ibid., s. 78. cruelty, see Moonshee Buzloor Ruheem («) Baillie, Dig. 290. V. Shuinsoonuissa Begum (1867), 11 (x) Wilson, s. 432. 57 — 2 900 DIVORCE — INDIA. to a present (matat). During her uMat after a revocable divorce the wife has a right to maintenance, and preserves her rights of inheritance as regards her husband. On the completion of the iddat all such rights cease (a). Under the Shafei law (6) the wife has no right to maintenance during her iddat. The facility for divorce amongst Muhammadans is consistently controlled by the fact that deferred dower is payable on divorce (c), and that it is not unusual at the time of marriage to fix an amount the payment of which will cause the husband con- siderable inconvenience. Other Communities in British India. — Christians. — The Indian Divorce Act (d), which is in terms similar to the law administered in England, provides for divorce where the petitioner professes the Christian religion, and resides in India at the time of presenting the petition. By the Act a husband is entitled to a decree of divorce on the ground of his wife's adultery. The wife is entitled to a divorce : (a) when the husband has, since the marriage, exchanged his pro- fession of Christianity for that of another religion and gone through a form of marriage with another woman ; (b) or has been guilty of incestuous adultery; (c) or of bigamy with adultery; (d) or of marriage with another woman with adultery ; (e) or of rape, sodomy, or bestiality ; (f) or adultery coupled with such cruelty as without adultery would have entitled her to a divorce a meiisa et toro ; or (g) adultery coupled with desertion without reasonable excuse for two years or upwards (e). Either party is entitled to a decree of judicial separation on the ground of adultery, or cruelty, or desertion without reasonable cause for two years or upwards (/). Parsees. — The dissolution of the marriage of Parsees is dealt with by Indian Act XV. of 1865, which provided for the judicial dissolu- tion of the marriages of Parsees. A marriage may be declared void in case of unsoundness of niind (a) Tho divorce is final if the liUBband (h) "Wilsou, s. 402. does liot take the wife back before the (r) P. 757, (mte. completion of the "Iddat" : Ibrahim {d) Indian Act IV. of 1869. V. Syed Bibi (1888), I. L. E. 12 Mad. (e) Ibid., s. 10. 63; Mozuffur Ali v. Kumurunissa (/) S. 22. Bibi (1864), Calc. W. R. 32. BURMAH. 901 existing at the time of marriage and since continuing, and impo- tence. It ma}^ be dissolved in case of continued absence, without having been heard of by the other spouse for seven years, in case of the wife's adultery, and in case of the husband's adultery with a married woman, or fornication with an unmarried woman not being a prostitute, or of bigamy coupled with adultery, or adultery coupled with cruelty, or of adultery coupled with wilful desertion for two years or upwards, or of rape, or of an unnatural offence (g). There are also provisions for judicial separation and for restitution of conjugal rights (//)• Under this Act, which otherwise is similar to the Indian Divorce Act, adultery with a prostitute is not a ground for divorce, and is only a ground for judicial separation when the prostitute is openly brought into or allowed to remain in the place of abode of a wife by her own husband (/). Burmah. — Buddhist Law. — Desertion is one of the grounds for divorce. In the case of the husband it must be proved that a period of three years has elapsed during which time he has failed to support his wife in any way. With the wife the period is one year, during which interval no support must have been given by the husband. The intention to desert may always be inferred. The fact that a husband has joined the priesthood would afford a ground for the dissolution of marriage. Neglect may not amount to deser- tion. The Dhamathats enumerate different periods which must elapse before a wife can re-marry when the husband has in the first instance left her for some definite purpose. As an instance, if the husband goes away to trade or in search of knowledge, the wife must wait for eight years before she has the right to re-marry. But if during his absence- he marries and fails to maintain his wife, the usual period of three years need only pass to entitle the latter to marry again. Repeated ill-treatment towards a wife will entitle her to a divorce. Matricide, patricide, killing, stealing, shedding the blood of a Buddha or Rahan, heresy, and adultery are amongst the deeds which entitle a Burmese Buddhist to sever the marriage tie. Marriage may always be dissolved by the consent of the parties. When there is no such consent the intervention of the Court is (g) See Indian Act lY. of 1869, (/*) Ss. 31, 36. ss. 27—30. (i) Indian Act XY. of 1865, ss. 30, 31. 902 DIVORCE — CHINA AND JAPAN. necessary, and in that case one of the recognised grounds must be estabhshed by the party seeking the divorce. The modes of division of property belonging to the parties on a divorce vary according to circumstances. In some instances the party not at fault may receive the whole of the property possessed by both. Condonation is recognised by the Buddhist law. On a dissolution of marriage by mutual consent, the ordinary rule is that the father is given the sons and the mother the daughters. In the case of extreme youth the son remains with the mother. When the divorce is granted by the Court it has the power to decide as to the care of the children. Though a suit for restitution of conjugal rights can be maintained, none lies for judicial separation. China. — Marriage is dissolved by death or divorce. A divorce must take place if any of the above-named impediments to marriage is discovered, or if the wife commits adultery. A divorce may also take place: (1) by consent of both parties, e.g., for incom- patibility of temperament ; (2) if the wife leave her husband's house without his consent ; (3) if the wife beats the husband ; (4) if the marriage contract contained false statements ; (5) if the wife has one of the following seven faults, viz., barrenness, sensu- ality, want of filial piety towards the husband's parents, loquacity, thievishness, jealousy, or an incurable disease. The husband must, however, keep her, even with any of the above-mentioned seven faults, if she has mourned for three years after the death of his parents ; if his family have passed from poverty to wealth since the marriage ; or if she has no relations to whom she may return after divorce (./') . Japan. — There are two kinds of divorce : (a) by arrangement between the parties ; and (b) judicial. In the former case this is effected by notice to the registrar with the same formalities and under the same conditions as in the case of marriage. If the notice is accepted and the head of the family agrees, the person leaving the other's family is registered in the register of his or her former family ; otherwise he or she is registered as head of a new family ; or if he or she had upon marriage abolished their original family, that family is resuscitated. (y) This account is contributed by Mr. J. Dromloy Eauics, 13arrister-at-la\v. SI AM. 903 Persons under twenty-five must have the consent of the persons whose consent was required on their marriage. In the latter case, divorce is granted for the following causes : (1) if the spouse contracts another marriage ; (2) adultery of the wife ; (3) criminal sentence passed on husband for immorality ; (4) criminal sentence passed on a spouse for specified oft'ences ; (5) cruelty or grave insult by the other spouse rendering common life intolerable ; (6) desertion with evil intention ; (7) cruelty or grave insult by a lineal descendant of the spouse ; (8) cruelty or grave insult to a lineal ascendant by the spouse ; (9) uncertainty during a period of three years whether the other spouse is alive ; and (10) the dissolution or annulment of adoption in cases where the adopted person is connected with the adopted family both by marriage and adoption. In cases (1) to (4) consent, and (1) and (7) condonation, by one of the spouses to the act in question bars divorce ; and a spouse who has received a sentence specified under (4) cannot petition for divorce on the ground that the other spouse has received a criminal sentence. An action cannot be brought after a year from the party becoming aware of the fact or ten years after it took place on any ground mentioned in (1) to (8) ; nor can it under (9) after the fact has been ascertained ; nor under (10) after three months from becoming aware of the dissolution or annulment of the adoption, or if the right to apply for a divorce has been given up. Under both kinds of divorce, in the absence of any contrary arrangement, the custody of the children belongs to the father, or to the mother if the father by the divorce leaves the family ; but in the case of judicial divorce the Court can order a different course to be followed (/r). Law of Slam. — The grounds for divorce may, generally speaking, be said to be any breach of the marriage covenants, even though these may include one on the part of the husband not to have a second wife {I). Ill-treatment, failure to maintain a wife in the position she ought to occupy, desertion for a statutory- period, {k) C. C, arts. 808—819 ; Gubbins's 787. Civil Code of Japan, Introd., 40, 41. (/) Kreung r. Phra Sakorn, Tachiii, Nullity of marriage by judicial decree 68—128. is also provided for in the Code, 778 — 904 DIVORCE — SIAM. adultery on the part of the wife, serious crimes committed by a husband and probably by a wife, assault on and serious abuse of a wife's parents, or the husband becoming a priest, all form grounds for the interference of the Courts (w). Judicial separation is unknown, though separation by mutual consent of the parties is a good and valid one («). (m) Laksana Phua Mia. H.E.II. Prince Eajburi Direkriddi, (») This account is contributed by Minister of Justice, Bangkok. CHAPTER XVII. DIVORCE PRIVATE INTERNATIONAL LAW. Groverning Law. — It will have been seen that the dissolubility of marriage and the causes for which it may be either entirely dissolved, or its obligations only suspended by the separation of the parties a mensa et toro, are subjects on which contlicling doctrines are maintained by several systems of jurisprudence. When the law of the country in which the parties were married differs from that of their domicil or nationality, or from that of the country in which the suit for the divorce or separation is insti- tuted, it becomes necessary to ascertain which of these conflicting laws ought to be selected in deciding whether such divorce or separation can be granted. The subject is here treated under the following heads : — I. Jurisdiction in divorce and the competent /oru»«. II. Choice of the proper governing law, which is now generally taken to be the personal law, subject to certain limitations. III. Conflicts (a) as to dissolubility of marriage ; (b) as to grounds of divorce between personal law and lex fori ; (c) as to forms of relief ; (d) as to effects of divorce. IV. Divorce infraudcm leyis. V. Judicial separation. VI. Conversion of separation into divorce. VII. Eecognition of foreign decree of divorce or separation. VIII. Nullity of marriage. I. Jurisdiction in Divorce and the Competent Forum. — On the first question, what Court has jurisdiction in divorce, in the former edition of Burge's Commentaries attention was chiefly drawn to the prin- ciple, which then seemed to have been adopted by the Scottish Courts, that neither the place in which the marriage was celebrated nor that of the place in which the parties were permanently domiciled need be regarded, but jurisdiction could be exercised over all foreigners present in Scotland with regard to the relation of husband and wife on the same conditions as with regard to other matters. It 906 DIVORCE PRIVATE INTERNATIONAL LAW. seems no longer necessary to refer to the Scottish decisions, cited on this point by Burge in the former edition, other than that of the Court of Session, reviewing the decisions of the Consistory Court, in four cases which ilkistrate the different contingencies possible in this connection. Former View. — Scotch Decisions Favoiired Law of Parties' Residence — In the first case, the parties were English, regularly married in England, where they continued to cohabit until 1810, and the adultery had been committed in Scotland (a). In the next case, the parties were Scotch, and the adultery had been committed in Scotland, but they had been married in England (/>). In the third ease, both the parties were Irish. Their marriage took place at Gretna Green in Scotland, and immediately after it, they returned to their native country, where they resided during the whole period of their cohabitation, and the adultery was committed in Scotland (c). In the fourth case, the parties were citizens of London, where they had been married. The husband visited Scotland for a temporary l^urpose, and there committed adultery (d). In the first two cases, the interlocutors of the Consistory Court dismissed the actions, on the ground that neither the temporary domicil in the one, nor in the other, even the real domicil of the parties in Scotland, nor the adultery there by the defender, could have the effect of altering the condition of the contract between the parties as indissoluble secnndum legem loci eontractus, so as to authorise the Court to pronounce sentence of divorce a vinculo matrimonii. In the third case, the interlocutor dismissed the action, on the ground tliat the real domicil of the i^arties was in Ireland. Ill the fourth case, tlie interlocutor dismissed the action, because the marriage of the parties was indissoluble by judicial sentence according to the law of England, which was both the locus contractus and the country in which the parties always had their domicil. This question, having been brought under the review of the («) Levcttw.Lcvett, December 2 Lst, (c) Forbes r. Forbe^f, March 7th, 1816, Ferguss. Rep. 68. 1817, ibid., 209. (/>) Edmoiistone v. Edmonstone, ('0 Rowland r. liowhmd, Ajiril 7th, December !)th, 18H, ibid., 168. 1817, ibid., 226. JURISDICTION FORMER VIEW. 907 whole Court of Session by these four cases, received the most full discussion and consideration. Certain questions were submitted to ten of the judges of the Second Division. In answer to them, they stated their unanimous opinion, " That it is not a valid defence against an action of divorce in Scotland for adultery committed there, that the marriage had been celebrated in England. " Nor that the jDarties had been domiciled there, when the marriage had been celebrated in Scotland, " And lastly, that where the parties are Scots persons, happening to be in England when their marriage was celebrated, but who thereafter returned to Scotland, and cohabited and continued domiciled there, these circumstances can never aid the defence against an action of divorce in Scotland for adultery committed there, on the ground that the marriage had been celebrated in England. On the contrary, the judges are of opinion that these circumstances will materially support the plea of the pursuer of the divorce." In giving this opinion, the judges added " that they take it for granted that there is no objection to the jurisdiction of the Court, from the want of that residence or domicil in the parties, which is necessary to found civil jurisdiction. And also that there is no proof of collusion between the parties either by direct evidence, or necessarily arising out of the circumstances of the case, as they mean to give their opinion only on the abstract question put to them, and to say, that the mere fact of the marriage having been celebrated in England, whether between English or Scotch parties, is not 2^er se a defence against an action of divorce for adultery committed here '-' (e). The several interlocutors in the cases above mentioned were reversed. It was decided with the concurrence of all the judges, except Lords Glenlee, Bannatyne, and Robertson, that if there had been sufficient domicil to found jurisdiction, the law of Scotland ought to prevail and the marriage be dissolved (/). The jurisprudence of Scotland had thus adopted the law of the country in which there had been a residence for a sufficient length (e) Ferguss. Eep., p. 115. (/) Fac. Coll., June 1st, 181G, December 21st, 1S16. 908 DIVORCK — PRIVATE INTERNATIONAL LAW. of time, to give the Court jurisdiction, although it should not be the actual domicil of the parties. Modern View. — Law of Matrimonial Domicil not Favoured. — This theory of the sufficiency of a domicil of less completeness for founding jurisdiction in divorce than what is required for other purposes, e.p., succession, was maintained by the Scottish Courts till quite recent times (_r/) ; but it may now be taken to be abandoned, as it was not argued before the House of Lords in 1864(//), and the Scottish Courts have since expressed disapproval of it (/) ; and since the decision of the Privy Council in Lc Mesurier v. Le Mesurier only complete domicil would seem sufficient for this pur- pose (A-). Other Scottish theories, such as that referred to in the text that jurisdiction in divorce can be founded on a residence by the defender of forty days there, coupled with citation there, and in other cases by a personal citation in Scotland and the commission of the adultery there, have similarly been declared unfounded {I). In England the theory of the matrimonial domicil as giving jurisdiction in divorce has now been definitively abandoned (»/)• In India, however, jurisdiction in divorce depends on residence {n). In foreign countries, as will be seen later, domicil which is less complete than ours and which is less in degree than the general personal law is now often accepted as the basis of jurisdiction, at least with the consent of the parties, and certainly if that domicil is authorised by the official authorities (o). Personal Law is to be Applied. — In England, Scotland, and the United States the law of the actual domicil of the parties at the time of the petition is the exclusive governing law {p). An English (r/) Jack V. Jack (1862), 24 Sess. Cas., D. 132 ; Westlake, 85 ; Dicey, 257. 2nd ser., 467 ; Stavert?;.Stavert (1882), («) Indian Divorce Act, No. lY. of 9 Sess. Cas., 4tli ser., 519. 1869, s. 2 ; Warter v. Warter (1890), 59 (70 Pitt V. Pitt (1864), 4 Macq. 627. L. J. P. D. & A. 87 ; Foote, 124. (?') Stavert v. Stavert, ante; Low r. (<>) Gillesine, Bar, 403, and see post. Low(1891), 19 Sess. Cas.,4thser.,115. (^Ol^atclill' r. Ratclifi' (1859), 29 [lc) Le Mesurier v. Le Mesiuier, L. J. P. & M. 171; Wilson t». Wilson [1895] A. C. 517. (1872), L. R. 2 P. & D. 435 ; Le (0 Stavert /-. Stavert, Gillespie, liar, Mesnrier v. Lo Mesurier, [1895] A. C. 401, 402. 517; Armytage v. Armytage, [1898] (?») IjO Mesurier v. Lo Mesurier, P. 178,185. It seems that residence ovemiling in princii)lo Niboyet v. is not necessary to make the jurisdic- Niboyet (1878), 4 P. I). 1 ; D'Etcbe- tion attach: Gillis v. Gillis (1874), 8 goyen v. D'Etchegoyen (1888), 13 P. Ir. P. Eq. 597 ; Duggan v. Duggan, JURISDICTION — MODERN VIEW FAVOURS PERSONAL LAW. 909 Court can therefore pronounce a divorce between two foreigners domiciled in England (q), and correlatively it should have no jurisdiction to divorce English parties domiciled abroad (r). A doubtful exception has, however, been made to the latter rale in the case of an English marriage between British persons where the husband has changed his domicil (s). An English Court has heard a divorce suit between parties not then domiciled in England where the respondent appeared unconditionally (t), but this has been dis- approved {tt), and now the fact of an English domicil must be alleged in the petition. As said above, matrimonial domicil will not give juris- diction to an English Court or support a foreign decree for divorce {u). The standard of domicil is also accepted in foreign countries like France (■<■), Austria (y), Belgium (z), and others which adopt nationality as the governing law for all questions of status. In France formerly all such jurisdiction was refused (a), but the Courts have lately laid down the general rule that they have a facultative jurisdiction over foreigners in divorce, and the Courts will now generally assume jurisdiction in matters of divorce and judicial separation unless the respondent is able to establish that he pos- sesses a real domicil in another country where the action can be raised (b). This jurisdiction has been exercised over foreigners who Melbourne S. C, L. T. (54, 152, Decern- appearance will not give jurisdiction ber 29tli, 1877, Foote, 118; Wharton, when it is otherwise wanting : Kinnier 209 ; Dicey, 256, and Isted., American v. Kinnier, 45 N. Y. 535. Notes, 283, citing cases. So Saviguy, [tt) Armitage v. A.-G., [1906] P. s. 379, Guthrie, 299. 135, 140 ; Gorell Barnes, P. ; Dicey, ((/) RatcliS V. Eatcliff, Indian mar- 261. riage ; Wilson v. Wilson, ante, Scotch («) The decision in Santo Teodoro v. parties ; Foote, 116 ; as to Canada, Santo Teodoro (1876), 5 P. D. 79, is see Pari. Pajiers, 1894, 323, 324, at probably referable to the matrimonial pp. 50 et seq. domicil being stipulated for in the (r) Yelverton v. Telverton (1859), 1 marriage contract. S. & T. 574 ; 29 L. J. P. & M. 34, resti- (x) 1893, J. 152, C. A., Paris, tution of conjugal rights ; Le Sueur v. {y) 1893, J. 212, Vienna, S. C, where Le Sueur (1876), 1 P. D. 139, where the parties also submitted to the Court, Sir E- Phillimore reviews all previous and had their last common domicil cases. there. (s) Decki'.Deck(1860), 2S. &T. 90; (z) 1887, J. 215 ; 1889, J. 712 ; 1891,. 29 L. J. P. & M. 129 ; Bond v. Bond, J. 1011, Ghent. (1860), 2 S. &T. 93. Foote disapproves (a) 1885, J. 383, 385, Clunet. of them, 121. (h) Trib. Seine, May 24th, 1897,. (t) Callwell V. Call well (1860), 3 S. & Zacchire, Journal du droit int. pr., T. 259; Zyclinski r. Zyclinski (1862), 1898, p. Ill; Trib. Seine, January 2 S. & T. 420. In the United States 21st, 1897, Keller, ibid., p. 115 ; Trib. 910 DIVORCE PRIVATE INTERNATIONAL LAW. were married and are domiciled in France, certainly if domiciled with the sanction of the authorities (c), and also even without it if the parties accept their jurisdiction (d) or appear uncondi- tionally (c); where the domicil of the parties is uncertain and it cannot be shown that any other Court could do the i^arties justice (/) ; and where both parties do not consent, it has been held that it is incumbent on the defendant to show not only his foreign nation- ality, but also that he has a real domicil abroad which is the proper forum in the matter (/). Whether the Court must take the objec- tion itself {cVoJfice) or whether the objection only lies ratione iJersome is not yet definitely decided, but the current of later decisions supports the latter view ((/). But the tribunals will decide the case on the grounds admitted by the national law (//), and if the parties' personal law does not allow divorce French Courts will not grant it (i). Where such law refers to the law of the domicil some writers (/c) consider that the French Courts, if the domicil de facto is in France, ought to act on the grounds which are sufficient in purely French cases, and the Belgian Court of Cassation has expressly so decided (/), but the contrary has since been held by the Civil Tribunal of Dieppe (m). Finally, recent case law permits Seine, May 10th, 1897, Lacoinbe, ibid., 115. (c) 1897, J. 335, Vesoul ; 1889, J. 814, 623; 1898, J. 895, Amiens; 1892, J. 439, Seine, not if foreigner's mar- riage and domicil are foreign. ((/) 1890, J. 878, 883. (e) 1898, J. 352, Algiers ; 1904, J. 382, Aix, C. A. ; 1891, J. 1189; 1886, J. 584 ; 1890, J. 884. (/) 1893, J. 370, C. A., Paris, 373, ibid., 1166, Seine; 1898, J. Ill, Seine; 1894, J. 123, C. A., Paris ; 1894, J. 823, Orleans ; 1895, J. 97, C. A., Paris ; 1896, J. 602, Seine, persons established in France, offence committed there, and wife fonnerly French ; 1896, J. 149, C. A., Paris; 1897, J. 533, Seine; ibid., 331; 1888, J. 87, Dijon ; 1887, J. 609 ; 1898, J. 927. The French Courts went on the same principle in granting separatum de corps when divorce was not allowed in France, (r/) 1891, J. 1193, Seine; 1885, J. 318 ; 1890, J. 874, 875, 887, 479, 483 ; 1893, J. 151, 374. [h) Cass., February 12th, 1895, Lenthe, Gaz. des Trib,, Februarj^ 13th, 1895; Trib. Seine, December 11th, 1889, Emmanuel, Le Droit, December 23rd, 1889 ; 1895, J. 834. (i) E.y., Spanish, 1892, J. 662, Algiers; 1896, J. 151, Bar-sui'-Aube ; and see post ; 1900, J. 955, Montpellier; or Portuguese, 1890, J. 107, Seine ; perhaps Italians, see^os^ ; 1891, J. 505. (/c) See Vincent and Penaud, Diet., tit. Sep. de Corps, No. 70. (/) Cass. Beige, March 9th, 1882, Bigwood ; Sirey, 82, iv., 17. (m) Trib. Civ., Dieppe, April 2ud, 1896, Eastabrook v. Eastabrook, 1899, J. 360. See on this subject and on the theory of renvoi generaUy, Notes on the doctrine of renvoi in Private International Law, by John Pawley Bate (Stevens, 1904). JURISDICTION — HAGUE CONVENTION. 9 L 1 a foreigner who has become naturalized in Prance to obtain the benefit of the French hiw in the matter of divorce although he may have appHed for naturaUzation for that very purpose (u). In Germany, until the Code of 1900, domicil was the basis of jurisdiction in divorce, but its place has now been taken by nationality (o). The Court of the district in which the husband is domiciled is, as a rule, exclusively competent to try a petition for divorce or judicial separation ; if the husband is of German nation- ality without being domiciled in Germany the German Court in the district of which he had his last domicil is also competent to try the petition. If neither of the spouses is of German nationality a German Court is not competent to try the petition unless such Court has jurisdiction under the law of the State of which the husband is a subject (_/>). This principle is recog- nised by the Hungarian law (q). In Switzerland foreigners domiciled there can sue in the Courts for divorce if they can show that the decree will be recognised in the country to which they belong (r). In Italy, where the municipal law does not allow divorce, there is some difference of ojDinion as to the competence of the Italian Courts to entertain petitions for divorce by foreigners, or to sanction the execution of such decrees pronounced by com- petent foreign Courts. With few exceptions (s) the Italian Courts have held that they have no original jurisdiction in this matter. In Denmark the Court of the domicil is regarded as the only competent Court for this purpose (0- The Hague Convention assigns jurisdiction in divorce to the tribunal of the parties' domicil as well as to their national tribunal to the extent that the latter Court has not jurisdiction reserved to (ft) Court of Appeal, Paris, May diction of the Swiss Court and the 12th, 1893, Menabrea ; Le Droit, May cause of divorce which is iu question ; 18th, 1893. see art. 7h, added to the Federal Law of (o) 1884, J. 316, Eeichsgericht. June 25, 1891, by art. (31 of the Final {p) Civil Procedure Code, s. 606. Title to the Civil Code. Iq) Marriage law of 1894, art. 116. (s) Ancona, C A., March 12th, 1884, (r) Federal Law of Marriage and Foro Ital. 1884, i. 574 ; Genoa, Trib. Civil Status, 1874, art. 56; Barrilliet, June 7th, 1894, Giur.,Ital. 1894, 554 ; 1880, J. 347, 348 ; 1884, J. 643 ; 1888, Milan Trib., June 2nd, 1897, Mouitore, J. 153 ; 1890, J. 512. When the 1897, 514. Federal Code comes into force it will {t) 1895, J. 191, Sweden ; 1904, J. be necessary to show that the country 205, Copenhagen, Court of Appeal. of nationality will recognise the juris- 912 DIVORCE PRIVATE INTERNATIONAL LAW. it exclusively by its law {u), though the cause of divorce must satisfy the national law and the lex fori (v). The general rule, however, in the modern Codes, as with the modern jurists, is to make the law of the nationality the governing law in divorce (,r) ; and the Hague Convention makes compliance with that law a necessary condition of the petition, while it gives exclusive jurisdiction in divorce to the Court competent by the national law for all cases in which that Court has exclusive juris- diction by its own law, e.g., for religious marriages (y). In many countries the Courts will not entertain suits for divorce by foreigners, e.g., Russia (z) and Greece (a). A former personal law has no effect for this purpose {b), unless in the case of a wife whose husband changes his domicil or nationality after marriage, and therefore hers constructivel}'. Where Parties have Different Personal Laws. — Position of Wife. — The question what law is to govern the question of jurisdiction in divorce where the spouses have different personal laws has not received the same answer in all legislations and text-books. The general rule is that the wife takes the husband's personal law on marriage, and where that is the law of the domicil she follows his changes of domicil (c). On the Continent, especially in countries in which naturalization of the husband does not carry with it that of the wife, the husband's change of nationality, even (in some systems) though bond fide (d), does not deprive the wife of the right of bringing divorce proceedings in the last common forum of the spouses (e). (») Art. 5 (b), Chmet, 1901, J. 231 et (d) See jwst. ggq, (e) For opinions in favour of hus- (v) Art. 2. band's actual personal law being (a-) German Code, Introd. Stat., art. decisive, see Belgium, 1878, J. 513; 17 ; Swiss Code, art. 61 ; Bar, s. 177 ; 1896, J. 842, Seine ; 1893, J. 847, C. A., Gillespie, 392 ; Weiss, iii., 586 et seq. ; Paris; 1896, J. 606, Seine; or in favour Wharton, s. 209. of allowing wife to sue in the Court of {y) Art. 1 ; Art. 5 (b). The Conven- herresidence under such circumstances, tion is translated into English in see 1882, J. 544, Seine ; 1878, J. 164, Appendix to Kuhn's Meili (1905), Chambcry ; and Clunet thinks this is pp. 532 — 534. tendency of French Covu'ts ; Italj', (z) Eussia, 1902,J.486,Mandelstam. 1879, J. 301; Bar, Gillespie, 385 (a) Greece, 1898, J. 962. et seq.; Weiss, iii., 588, citing 1883, J. (ft) Bar, Gillespie, 384; Savigny, 531, Geneva; 1885, J. 177, Seine; 1890, 8. 379, Guthrie, 299 ; 1902, J. 195 ; J. 876, ihid. : see 1900, J. 955, 958, Story, H. 222 ; Tjaurent, iii., I). C.I. 302. where Clunet gives authorities ^)ro and (c) Burge, vol. ii. , p. 52. contra and 1891, J. 505, Italians; WHERE PARTIES HAVE DIFFERENT PERSONAL LAWS. 918 This principle is recognised bj' the Hungarian law (/) in favour of a Hungarian wife. This is the view adopted in the Hague Convention on Divorce, and which prevails in the French juris- prudence (//), though the contrary opinion has much support (//). This question overlaps with that of divorce infrandem legis, which is afterwards considered. The Convention gives jurisdiction in divorce to the Courts competent hy either the national law or the law of the parties' domicil. If according to their national law the spouses have not the same domicil, the comj)etent Court is that of the defendant's domicil. In case of abandonment or change of domicil made after the cause for divorce has arisen, the Court of the last common domicil is also competent (/). In England and Scotland it is settled that a wife cannot have a different domicil from that of her husband, except perhaps if she has been judicially separated from him (k) ; but this has been qualified by the consideration that this must not be allowed to work injustice to the wife and place her entirely in the hands of her husband who could then take advantage of his own wrong (/). (/*) See note (e), atde. See Holland, 1899, J. 869, Cassation; Brazil, 1895, J. 1897, J. 333, Nice; 1903, J. 163, Seine. Where spouses of different nationalities marry, law of common domicil governs divorce : 1893, J. 1167, Seine. The personal law of both spouses decides if divorce is admis- sible : 1895, J. 834, Cassation. In France, since 1893, a French woman married to a foreigner and separated, can naturalize herself abroad without consent of husband, 1895, J. 607, Seine; compare the Bauffremont case, ^50s^, 1878, J. 505, and 1895, J. 607 ; and see Transylvanian marriages, jws^. As to Germany, see Introd. Stat. C. C, art. 17. (/) Thus a Hungarian woman who marries a foreigner may sue in Hungary to have the marriage set aside, if she has not followed her husband abroad ; and on the like con- dition if the husband was Himgarian and has changed nationality after giving cause for divorce, she may sire for divorce before a Hungarian Cotiii : Law of 1897, art. 117. [g) See note (e), ante. M.L. 1065, Tunis. (/) Art. 5 (b). In England, in cases where an English woman married a foreigner, with a covenant in the mar- riage settlement that the matrimonial home should be in England, the Courts have declined to recognise a foreign divorce ; and they have granted the wife who remained in England a divorce : Collis V. Hector, 1875, J. 445 ; Santo Teodoro V. Santo Teodoro (1876), 5 P. D. 79 ; see Alexander. 1681, J. 193. An English translation of the Hague Con- vention relating to divorce may be found in Kuhn's Meili, "International Civil and Commercial Law" (1905), p. 532. {k) Le Sueur v. Le Sueur (1876), 1 P. D. 139; 1876, J. 191 ; Dolphin v. Eobins, 1859, 7 H. L. C. 390; Eedding V. Eedding, 1888, 15 Sess. Cas., 4th ser., 1102; Low v. Low, 1891, 19 Sess. Cas., 4th ser., 115, perhaps where judi- cially separated . (0 Ibid. 58 914 DIVORCE — PRIVATE INTERNATIONAL LAW. It seems that in our law a wife deserted by her husband or whose husband has so conducted himself as to justify her hving apart from him, and who up to such time has been domiciled in England, can sue in our Courts for divorce (nt) ; but she cannot acquire a new domicil for that purpose (n). In the United States, on the other hand, in view of these considerations the wife is regarded as capable of acquiring a new domicil for the purpose of obtaining a divorce from her husband in such a case (o). The general American rule, as stated, makes the guilt or innocence of the wife the crucial point for deter- mining her domicil, and it has been expressly held that when the wife is defendant, in the absence of justification on her part, she is to be regarded for the purposes of the suit as domiciled with her husband (p). But in line with the modern tendency (already men- tioned when discussing Matrimonial Status) to harmonise the rule of domicil with the statutory extension of woman's rights, a number of American jurisdictions do not under any circumstances adopt the fiction that the wife's domicil follows the husband's for the purpose of maintaining jurisdiction for a divorce. Accordingly the question of her domicil depends not upon her guilt or innocence, but upon the actual facts of the case, namely, as to her actual residence and her intention to maintain such residence {q). II. Proper Governing Law. — This may be either (1) the lex loci contractus or place where the marriage was celebrated ; (2) the lex loci ddicti or place where the matrimonial offence was committed ; (3) the law of the place where the parties are resident ; (4) the personal law. This last is now generally accepted, though whether the standard of domicil or that of nationality respectively be adopted (m) Armytage v. Armytago, [1898J plaintiff can sue in his own domicil: P. 185 ; Westlake, s. 46, p. 80; Dicey, Wharton, 482, citing Colviu v. Reed 26'S et seq. (1867), do Penn. St. 375; Reel v. {n) Westlake, s. 51, citing Shaw )'. Elder (1869), 62 ibid. 315; and see A.-G. (1870), L. R. 2 P. & D. 156. Piatt's Appeal, 80 Penn. St. 501. (o) Wharton, 88.224—226; Fraser, (;>) Cheely u. Clayton (1883), 110 1289; Harteau v. Harteau, Mass, 14 U. 8. 701 ; see also Bui-tis v. Burtis Pick. 181 ; Burlen v. Shannon, 115 (1894), 161 Mass. 508 ; 37 N. E. 740. Mass. 438; Hood v. Hood, 11 Allen, (q) Tracy v. Tracy (1902), 62 N.J. 196. lu Pennsylvania the injured Eq. 807; 48 Atl. 533; McGrew v. party must resoi't to the defendant's Mutual L. Ins. Co. (1901), 132 Cal. forum unless the defendant has left 85 ; 84 Am. St. Rep. 20; and see pp. 368, the common domicil of both, when 789, a>ite, and Burge, vol. ii., 54, 55. surge's reasoning in favour of personal law. 915 is a question to be decided by the lex fori, which may also impose limitations or substitute its provisions for those of the personal law. In Scotland, as has been already seen, the earlier view was that the law of the country where the parties were actuall}^ resident should regulate whether the marriage should be dissoluble or not. English Decisions Favoured Lex Loci Contractus. — In England, on the other hand, the Courts had seemed to adopt the lex loci contractus as the governing law, certainly if that was also the law of the domicil of the parties and if that law was the law of England (?•). Lex Loci Delicti not Adopted. — In the jurisprudence of neither country then nor since, nor in any other S3"stem, has the dissolubility of the marriage been determined by the lex loci delicti, which was only referred to in the cases cited for the purpose of enforcing the adoption of one of the other three laws from which the selection is to be made. This is also the general opinion (s). Surge's Reasoning in Favour of the Personal Law. — The following are the considerations, on which Burge submitted, that neither the lex loci contractus, nor the law of the country in which there has been only such a temporary residence as enables a party to sustain a suit, ought to be adopted, but that the appropriate law by which the dissolubility of the marriage is to be determined, is that of the actual domicil ; and this conclusion has been approved not only in English and Scottish law, but generally in all juris- prudences. Lex Loci Contractus Rejected. — The lex loci contractus is, and ought to be, invoked only for the purpose of ascertaining whether that which is represented to be a marriage, is so in law, or in other words, whether the relation or status of husband and wife has been legally constituted. When that purpose is answered, and it has been ascertained that according to that law a valid marriage has been contracted, as the connection of the parties with the country in which that law exists, and consequently their subjection to that (?') Lolley's Case (1812), Russ. & 562; Story, C. L., s. 230 a; Foote, 11 o ; Ryan, 237 ; 2 CI. & F. 567, n. ; ^Tiarton, 232 ; Bar, Gillespie, 385, McCarthy v. De Caix (1831), 2 Russ. 401, and Scottish Courts ; Dicey, & Myl. 614, n. ; 3 Hagg. E. R. 642 ; 256, Ist ed., and American Notes, 283 ; Conway v. Beazley (1831), 3 Hagg. Germany, 1897, J. 179, Jena. See E. R. 642. Gorell Barnes, J., Armytage v. Army- (s) Lord Lyndhurst, Warrender v. tage, [1898] P. 178, 194. Warrender (1835), 2 CI. & F. 481, at p. 58—2 916 DIVORCE PRIVATE INTERNATIONAL LAW. law, ceases, so the law itself ceases to be the rule or authorit}^ which governs their conduct or regulates their rights and obligations. Question of Status, not Contract. — The contract or consent on which the status of husl)and and wife is founded, should be considered as perfectly distinct from the status itself. The latter is juris gentium, and its relations extend so far beyond the parties themselves that, unlike a contract, it is not in their power to prescribe for themselves the rights which it shall confer, or the obligations which it shall impose on them. It cannot, like an ordinary contract, be dissolved by their mutual consent. Although incurable insanity or any other impediment should intervene, rendering the one party incompetent to perform his part of the contract, and therefore defeating the end and object of the marriage, still the status will subsist. " Solvitur matrimonium partium consensu nullo modo, quia non, ut reliqui contractus mere consensuales, status prior conjugum potest redintegrari " {t). The municipal law of every country takes upon itself to define and declare the rights, duties, and obligations, which shall be incident to the status of marriage, whether that status has been originally constituted under its own law, or under that of any other countr3\ It would be deprived of its legitimate power, if persons by importing the regulations prescribed by the law of some other country for their exclusive government, could withdraw themselves from those which the municipal law of the country in which they reside had prescribed for all its inhabitants. It is not, therefore, to the law by which the status is originally constituted, but to the law which, after it has been constituted, defines its rights, conditions, duties, and obligations, that resort must be had, in ascertaining what those conditions, rights, duties, and obligations are. They are questions not of contract, but of status, and ought to be determined by that law which would be aj^plied to the decision of other questions of status. The selection of the law, by which not only the rights of (t) U. Huber, de Fain, et Matrim. solution in some legislations. See lib 2. c. 1, 8. 9, p. 388 ; Burge, let ed., aiit<; e.i;). The questions (a) what is the personal law to be applied ; (b) where the parties have different personal laws, which is to govern, have similarly been already considered (/). Time of Action Determines Proper Law. — The personal law of the parties at the time of the institution of the proceedings may, however, not be the same as that at the time of the matrimonial offence. In this case, although, as has been seen, the locus of the matrimonial offence founding the divorce is not material, the time of its occurrence may be taken in conjunction with the party's personal law, and the act might be a ground for divorce under the personal law of the party at the time of divorce pro- ceedings, though not at the time of its occurrence. On principle it would seem that, if the act was not a ground for divorce when committed, but is a ground for it by a later personal law after- wards acquired, e.g., adultery insufficient under a former personal law which required adultery and desertion, but sufficient under a later one, it should not be taken into account {)n). This view has been adopted in the Hague Convention {n), and the German Introductory Law to the Civil Code {n). In Belgium the Courts have taken contrary views (o). In the converse case, where a matrimonial offence giving cause for divorce by the parties' then personal law has been committed, provision may be made that a subsequent change of personal law, e.g., by the husband changing his nationality, will not deprive the innocent spouse of the right to claim a divorce for it {p). In Massachusetts the earlier legislation seems to have aimed at excluding circumstances happening in any (k) See Labbe, 188.3, J. o ; 1899, J. Title of the Swiss Federal Code. ;36(). But Clunet criticises this ; ihid. (o) Belgium, 1878, J. 514, decisions ;J(}:j, and see Bar, Gillespie, 393. both ways as to whether grounds for (0 See ante, pp. 908, 912. divorce before naturalization in (to) Bar, Gillespie, 385. Belgium are available. Cf. 1890, {u) Art. 4, explained V>yLaine, 1901, J. 720; accomplice of guilty Belgian J. 240 ; Introd. I>aw to German Civil wife is not criminally liable there for Code, art. 17 ; 1904, J. 721. See also adultery in France, art. 7h added to the Federal Law of {]>) So in Hungary, for a Hungarian June 25th, 1891, by art. 01 of the Final wife ; see p. 913. CONFLICTS AS TO DISSOLUBILITY OF MARRIAGE. 925 foreign country, unless the parties have lived together as man and wife in Massachusetts before those circumstances happened, and one of them was then living in that State. A similar provision refused recognition to a divorce obtained in any other State for something which happened in Massachusetts while the parties were living there unless it was a ground for divorce in Massachusetts. By a later statute of the same State a decree of divorce could be pronounced for facts happening out of Massachusetts if the petitioner has lived for five years there before taking action (q). In Pennsylvania formerly jurisdiction depended on domicil at the time of the offence. This was abolished for offences committed in the United States, but not for those outside the country. Decisions in New Hampshire and Louisiana have countenanced this view, but it is generally rejected, and the law of the domicil at time of the suit adopted (r). III. Conflicts as to Dissolubility of Marriage. — This question may be raised by parties marrying in a country which does not recog- nise divorce at all, or being domiciled in such a country at the time of the marriage in another, and then claiming a divorce in a country where it is allowed on certain definite grounds. It was dealt with in the former edition of Burge's work in connection with the then existing difference between the laws of England and Scotland on this point — by the English law marriage being judicially indissoluble, while by the Scottish law it was so dissoluble for adultery and wilful desertion. With the introduction of judicial divorce into English law in 1857, that difference disappeared. In recent times this question has been chiefly raised in the case of Catholic marriages in countries which regard such marriages as indis- soluble. The Austrian Courts have held that a Catholic marriage between Catholics or between a Catholic and a non -Catholic, whether celebrated in Austria or elsewhere, is indissoluble so far as Austrian subjects are concerned, and that neither a change of religion nor of nationality by one party or both will be recognised as allowing them to re-marry in Austria after obtaining a divorce abroad (s). ((/) Bar, Gillespie, 383 ; Mass. Eev. woman a Catholic aud formerly an Stats, of 1835, c. Ixxvi. ; 1843, Austrian who, after getting a separa- c. xlvii. ; 1877, J. 459. tion in Austria, went over to the (r) Wharton, 229—231. Eeformed Chm-ch and, getting natural- (fi) 1886, J. 469. An Austrian Pro- ized in Hungary, obtained a divorce testant subject cannot marry a foreign there; so ibid., 470 — 471; 1877, J. 926 DIVORCE PRIVATE INTERNATIONAL LAW. As will be seen later {t) the Austrian Courts do not allow their law to be evaded by Austrian subjects obtaining a separation in Austria and then changing to the Protestant confession and becoming naturalized in another country, e.g., Hungary, and, after obtaining a divorce there, re-marrying an Austrian (u). Simi- larly in Russia there is no divorce of a Catholic marriage (x). On the other hand, in France, i:)reviously to 1884, when judicial divorce was re-established there, a foreign decree of divorce pronounced by a competent Court was recognised as valid even where one of the parties was French and the marriage took place in France, and perhaps even where both parties were French, and the parties were allowed to re-marry in France (?/). In Italy it seems that parties legally divorced in their own country can re- marry there {z), and in Argentina the law seems to be similar (a). In Quebec the Courts will similarly recognise a foreign decree pro- nounced by a competent Court for this purpose (b), and it is the general opinion that this falls under the general rule that a person's capacity to marry is decided by his actual personal law, subject in some systems to tlie condition that no fraud has been committed by the party against his proper personal law (c). It has been already pointed out (d) that a restriction against re-marriage imposed by some systems on the spouse divorced for misconduct has no exterritorial effect. Conflicts of Law as to Forms of Relief. — Again, the lex fori may not contain the remedy which a spouse ma,j be entitled to demand by his personal law, e.g., an Austrian wife may claim separation in Germany, and the German Code only allows divorce or judicial 77 — 78 ; 1880, J. 275, and 268 — 278, to foreigners whose i)ersoual law does Lyon Caen; 1878, J. 385; 1888, not contain such a provision : 1899, J. J. 412; 1893, J. 932, 935; 1885, J. 218, Ministry of Justice, overruling 157, 158, Rittner ; 1898, J. 385 ; 1874, J. 31, Paris, which Clunot Austrian Civil Code, arts. Ill, 115, approves. 116. (z) 1886, J. 175, Fiore. (0 Seep. 931. (a) 1903, J. 798; 1886, J. 294. ((/) Transylvanian marriages, see According to Daireaux, Ai'gentina does post. not recognise foreign divorces, though (x) 1S97, J. 130, Tunis Court. pronounced by national Courts, of {y) 1880, J. 298, Aiiiiejis, conlrd, marriages, which are iudissoluble by 1877, J. 39, Douai; 1878, J. 499, Argentine law. See jmt. Cassation. The period of waiting, (b) Laileur, 80 et seq. ten months, after dissolution of marri- (c) See jiost, pp. 930 et seq. age before re-marrying does not apply {d) See pp. 252, 253. CONFLICT AS TO GROUNDS OF DIVORCE. 927 separation convertible at the option of either party into divorce. It has been held in such a case that the German Court could only pronounce separation () inensd et toro as the remedy provided by the husband's national law (c). The forum cannot, however, it would seem, be asked to grant divorce to a person whose personal law entitles him to it when its own law does not allow it (/). This point is further considered under the next head. Conflict as to Grounds of Divorce between Personal Law and Lex Fori. — The third case of conflict proposed above {g), which law is to govern the grounds of divorce when the law of the country to which the parties belong and that of the forum both allow divorce, but on different grounds, has also been answered variously in favour of one or the other law. In English law the lex fori decides ; and a foreign decree of divorce pronounced by a competent Court of the parties' domicil at that time is recognised in England as valid, although the marriage took place in England and the grounds of the decree are not sufficient according to English law {h). This view is taken by the Institute (i). In Germany the general rule is that in respect of the right to obtain a divorce or judicial separa- tion the laws of the State of which the husband is a subject (ii) are conclusive ; but this rule is subject to the following modifications : (a) A matrimonial offence committed while the husband was the subject of a foreign State is not deemed a ground of divorce unless it is also a ground of divorce under the law of such State ; (b) if at the date of the petition the husband has ceased, but the wife has continued to be a German subject, German law has to be applied ; (c) where foreign law is applied no ground of divorce is (e) 1904, J. 193; E. Gr. vol. 48, also where the personal law of the p. 144. - spouses forbade divorce : 1885, J. 316, (/) See "Weiss, iii., 593 ; Laurent, Dresden (Eeichsgericht) ; 1888, J. 530, D. C. I., v., 274. Eeichsgericht; 1892, J. 732, Hanseatic {(j) P. 905, a«?e. Court; 1892, J. 1041, Eeichsgericht, (Ji) Harvey v. Farnie (1882), 8 Apj). ground of divorce happening in a Cas. 43 ; 1884, J. 193. foreign country where spouses were (i) Ann., X., 75, 1888. resident must also be a ground by lex {ii) Civ. Proc. Code, 1902, J. 195. foi-i. Art. 27 of the Introductory Law Before the new German Civil Code the to the German Civil Code applies lex fori governed, especially where it German law to cases where the parties' was also thejex domicilii of the husband, national law makes German law decisive or the lex loci celebrationis of the mar- by renvoi: see 1901, J. 158, Eeichs- riage and the /or»m of the wife, but gericht; 1904, J. 721, ibid. 928 DIVORCE PRIVATE INTERNATIONAL LAW. recognised which is not also a ground of divorce under German ]aw(A-). In Hungary a ground of divorce based on a foreign law is not recognised unless it is also a ground of divorce by Hungarian law (/). Similarly the Hague Convention requires that the causes of divorce must be allowed both by the national law and the lex fori (m). The view has been expressed that the ground of divorce need only satisfy the personal law; this is not now accepted (h). In France it seems that a French Court will only grant divorce to a foreigner if it is allowed by his national law, for a cause valid by that law and one not forbidden by French considerations of public order (o). In Belgium a similar principle prevails (p). The Monte Video Con- ference was of opinion that, provided that the cause for divorce was admitted by the lex loci contractus, the law of the matrimonial domicil should govern {q). Conflict as to Effects of Divorce. — The effects of divorce on the capacity of the parties, e.g., their right to re-marry, are governed by the parties' personal law (?•) ; but the lex fori may impose condi- tions of public order upon them (.s). It seems, too, that the pecuniary consequences are determined by the personal law(0, and such (A;) Introductory Statute to Civil Code, art. 17. (0 Law of 1894, art. 115. (m) Art. 2 ; see Kuhn's Meili (1905), pp. 245—247. {n) See Bar, 396, 397 ; see Labbe, 1885, J. 415 ; 1885, J. 318, n. ; and Barilliet, 1880, J. 352, applies lex fori. {«) Weiss, iii., G02 ; 1886, J. 710, Seine ; 1894, J. 120, Algiers. The laws of both spouses must allow it : 1893, J. 849; 1892, J. 194, Seine; 1899, J. 360, Diei)pe; 1885, J, 155, Clunet. (p) 1889, J. 713; 1891, J. 273, 592 ; 1890, J. 724 ; 1899, J. 859, Brussels ; 1898, J. 182, Liege. [), and Minnesota cases, '208, 209; 2 Kent's Comm. 108. So Gillespie, Bar, 401; Thorp r. Thorp Vischcr v. Vischer (1851), 12 Barbom-, (1882), 90 N. Y. 602. 640; McGiffort -•. McOiffert (1859), (//) Wharton, 229. 31 Barbour, 70 ; Hoffman v. Hoffman (2) Tracy r. Tracy (1902), 62 N. J. (1869), 55 Barbour, 269 ; Kerr v. Kerr Eq. 807. (1869), 41 N. Y. 272 ; Hunt r. Hunt (o) Wharton, 223, 204, 205. (1878), 72 N. Y. 217. For similar (/.) Armytage r. Armytuge, [1898] JUDICIAL SEPARATION. 935 jurisprudence held that the Courts had no jurisdiction to separate foreigners (c) ; but the later tendency is, as in divorce, to accept jurisdiction if the parties are willing (treating the objection as an incompetence rafione persoiue, not mater'ice), and are resident or have married in France, provided that their personal law allows it {(l), and that they cannot show that another Court would have jurisdiction {e). In Italy, where there is no divorce, jurisdiction relates exclusively to separation and nullitj' proceedings. In these the jurisdiction of the Courts to entertain suits affecting the status or family relations of foreigners resident in that country, including applications for the personal separation of spouses, is generally admitted (./■), at all events incases where no issue of incompetence is raised by the defendant ; but there is a con- siderable weight of authority for the view that the Italian Courts are incompetent in such matters, and that, not relatively, but absolutel}^ so that not even the submission of the parties will P. 178, 196 ; 1900, J. 646 ; Christian v. Christian (1897), 78 L. T. 86. (c) 1883, J. 294, Seine, even though domiciled in France; 1886, J. 95, Seine, and see 205; 1884, J. 173, Esperson, and n. (3), Clunet ; 1878, J. 45, Seine ; 1889, J. 474, Vesoul, though marriage was in France and parties have always since lived there; Udd., 666, C. A., Paris ; 1876, J. 220, Milan ; 1880, J. 303, 194; see Cassation, 1893, J. 177; 1893, J. 174, C. A., Paris, parties not living in France ; 1898, J. 131, Nar- bonne, incompetence for reasons of public order. {d) 1878, J. 452, Demangeat ; 1876, J. 183, Touloitse. In France the Marseilles Court has assumed juris- diction to separate foreigners, even against an exception of incompetence pleaded by the defendant, if they are domiciled in France : 1876, J. 185, of which Clunet approves ; 1890, J. 107, Portuguese, Seine ; 1900, J. 114, C. A., Paris; 1897, J. 362, C. A., Paris; 1898, J. 1102, Algiers; 1893, J. 173, Algiers; 1884, J. 191. French law does not allow separation by mutual consent : 1904, J. 188, Appearance will found jurisdiction: 1897, J. 581, Eouen; 1898, J. 755, C. A., Paris; 1890, J. 897, Seine; Italy, 1902, J. 634; Spanish persons canonically married are only separable in Spain by Ecclesi- astical Courts. So Monaco, 1895, J. 187. (e) 1893, J. 1201, C. A., Paris; 1894, J. 1031, Lyons; 1895, J. 624, Paris, 627, Seine; Belgium, 1893, J. 443, domicil; 1890, J. 107, Portu- guese, Seine. (/) Venice, A. C, July 9th, 1872 (Annali, 1873, iii. 149) ; Lucca, A. C, December 11th, 1872, September 1st, 1875 {idem, 1873, iii. 93; 1876, iii. 33); June 28th, 1877 (Foro Ital, 1877, i, 1190); Ancona, A. C, March 12th, 1884 {idem, 574) ; Turin Cass., Feb- ruary 5th, 1895 (Giur. Torino, 1895, 124); Florence Cass., November 25th, 1895 (Foro Ital., 1896, i. 68) ; Milan, A. C, June 15th, 1899 {idem, 1899, i. 785) ; Pescatore, Files, e dott. giurid., ii. p. 89 ; Saredo, Istit. di Proc. Civ., 3rd ed., p. 257; Eicci, Comm. al Cod. Proc. Civ., 7th ed., p. 239; Fiore iu Foro Ital., 1891, i. 1242. 936 DIVORCE PRIVATE INTERNATIONAL LAW. cure the defect (r/). It has been suggested that the lex fori shoukl govern separation, but this has not prevailed except in cases of parties whose nationaUty is uncertain (h). By the Hague Con- vention competence in regard to separation is put on the same footing as in regard to divorce (0, as it is also in the Monte Video Conference resolutions (/c). There is general agreement that the Court of the residence has jurisdiction to order pro- visory measures for the support or protection of the wife and children of whatever nationality within their territory, quite apart from consent of the parties (l) ; and this is affirmed in the Hague Convention, which in cases where the spouses are not entitled to apply to the forum for divorce or separation, allows them to apply to it for the provisory measures granted by its law in view of the termination of the common life, and these measures will be maintained if after the lapse of a year they are confirmed by the national jurisdiction (/;(). In France a foreign decree of separation requires no exequatur to take effect there except for execution process (n). These provisory measures include alimony (o), custody of chil- dren (/>), and restitution of conjugal rights!//). In England juris- diction in all these depends on residence of parties ; and in (^. (/() Demangeat, 1878, J, 450 ; 1.S75, {o) 1890, J. 497, Seine; 1890, J. J. 273, Marseilles, uncertain nation- S78 ; 1899, J. 571, C. A., Paris; 1881, ality; 1897, J. 362, C. A., Paris. J. 526, Seine; 1893, J. 1155, Dijon; {i) See Art. 5 (b), p. 912, ante; 1880, J. 303, Paris; 18S5, J. 670, Kuhn's Moili (1905), p. 533. Paris; 1892, J. 439, Seine; 1S98, J. {k) See W(us8, iii., 609. 909, Seine; provision ad litem, 1891, (/) France, 1891, J. 1195, C. A.; J. 1261, Monaco; 1892, J. 1020. Paris ; Paris; 1880, J. 194, 303, Seine ; 1903, so 1898, J. 1102, Spaniards, Algiers; J. 165, Seine, custody of children ; 1893, J. 573, Seine. 1882, J. 313, Amiens; 627, Seine; (/<) 1891, J. 1195, C. A., Paris; 1.S81, J. 526, Seine, custody of chil- Austria, 18S6. J. 463; 1S95, J. (i24. dren ; 1S.S3, J. 292, not provision wl C. A., Paris; l!K)3, J. 165, Seine. litem; 18.S9, J. 666, C. A., Paris; (y) See next note. CONVERSION OF SEPARATION INTO DIVORCE. 937 restitution of conjugal rights the jurisdiction ceases when the defendant leaves the territorial limits of the Court (/■)• In cases \Ylier6 the parties are temporarily residing in France the French Court, although it would not be competent to pronounce a divorce, has jurisdiction to prescribe alimony and regulate questions as to separate residence, custody of children, preservation of property and all other incidental measures (s). According to the Hague Convention, separation can only be demanded if the national law and the lex fori both admit it, a pro- posed additional rule — that if the national law allows only divorce and the lex fori only separation, separation only can be demanded — having been dropped, as was also one making it necessary for the ground of divorce to be expressly allowed by the two laws. If the lex fori allows or provides that the national law shall decide, that law only governs {t). English law assigns the decision of this to the lex fori (u). VI. Conversion of Separation into Divorce. — In some systems, as already seen, separation can be converted into divorce after the lapse of a certain time, e.g., in France and Belgium three years (.1), in Germany and Switzerland (x.i-), and in Hungary two years ; and it may be a question whether this provision of these municipal laws applies to foreigners as well as to natives. In Hungary it does (ij) ; in France the personal law is taken as the criterion subject to the lex fori (z), and it has been decided that a foreigner who after being judicially cited has been separated abroad can get a decree of conversion in France on a ground recognised by his (/•) Firebrace v. Firebrace (1). In other Continental countries foreign divorces of their subjects are not recognised, 2S ; RECOGNITIOX OF l-'OEEIGN DIVOKCK OU SKPARATIOX. 941 vania the matrimonial domicil is taken as the sole jurisdiction competent to decree a divorce, and no other will be recognised. The plaintiff must therefore seek redress in the forum of the defendant, unless such defendant has removed from what was the common domicil of both (/). As between the States, however, full faith and credit must be given to a foreign decree if obtained upon personal service of notice within the jurisdiction of the foreign State (s). But although a foreign divorce will not be recognised unless complying with these conditions, so far as to give validity to a subsequent marriage, it has been held that its effects within the State where it was granted will be recognised at least for the purpose of legitimating the children of a subsequent marriage born within that State, for it is said that the status of the parties towards one another has been determined so far as concerns the jurisdiction within which the decree was rendered (f). The Federal Courts have recently gone a long way toward sus- taining the integrity in every State of the Union of a divorce granted in one State upon the basis of domicil. Following the provision of the Federal Constitution that the judgments of a State shall be granted full faith and credit in every State, the Court granted recognition of a divorce decreed against the wife in Kentucky upon constructive service of the summons and complaint, so as to be valid within the State of New York, upon the ground that the Avife was in fact domiciled in Kentucky and therefore that the Kentucky Court had obtained jurisdiction over the person of the defendant by means of such constructive service (/O- Of course, had the juris- dictional fact of the wife's domicil been lacking, a personal service would have been requisite in order to sustain the decree of the Kentucky Court in a foreign State by virtue of the constitutional provision.. YIII. Nullity of Marriage. — Jurisdiction in nullity should be determined by the same principles as jurisdiction in divorce, i.e., lu N. E. 333 ; New York, C. A., 1888, (s) Federal Constitution, art. 4, s. 1, J. 691; Peoi^le v. Baker (18T8), 76 and see Biirge, vol. ii., j). ,55, note (//). N. Y. 78 ; 32 Am. Eep. 274 ; 1880, J. {t) In re Hall (1901), 70 N. Y. Supp. 313; and Lynde v. Lynde (1900), see 406, citing Lynde r. Lynde (1900), 162 note {t), post; 1901, J. 391. N. Y. 412 ; 56 N. E. 981. (r) Colvin v. Eeed (1868), 55 Ta. 375; {u) Atherton v. Athertou (1900), 181 approved in Est. of Fyock (1890), 135 U. S. 155 ; but see Haddock ?•. Fii. 522. Haddock, Burge, vol. ii., p. 55, note(>/). 942 DIVORCE — PRIVATE INTERNATIONAL LAW. either by the law of the domicil or that of nationaUty. This principle is adopted by the German law (x). Bar also gives juris- diction to the Court of the wife's domicil if she has not follow^ed her husband to his (t/). In England the Courts go farther, and hold themselves competent to pronounce nullity if the matrimonial domicil of the parties is in England or if the marriage took place there U). In the United States, the statutes do not usually contain special requisites for jurisdiction (a), but the Courts have in practice reached the same result as the English judicial rule. In a recent case in New York {h), it is said that, " Inasmuch as no reference is made to residence in actions to annul a marriage, while residence within the State of at least one of the parties is required in actions for the divorce (except in the one instance specified) and for separation, the legislature, in a carefully prepared and elaborated scheme of matrimonial action, intended, in actions to annul a marriage contracted within the State, to confer jurisdiction upon the Courts to adjudicate as to the validity of the contract, irrespective of the residence of the parties." All countries claim jurisdiction over their subjects' marriages, whether at home or abroad, and foreigners' marriages within their territory (c). In France it is held that for causes of form the lex loci contractus decides, while as regards absence or want of consent, existence of previous marriage, kinship or alliance between spouses, and disregard of formalities in a foreign marriage the personal (x) Code of Civil Procedure, s. G06. (a) See, for example, s. 1742, N. Y. {y) Bur, ;i90; 1874, J. 73, Seine; Code Civ. Proc. (ed. 1909). Switzerland, Federal law, arts. 43, 56 ; (6) Becker v. Becker (1901), 58 App. Martin, 1897, J. 758, 759; Germany, Div. 374. 1902, J. 862, EeichsgericM ; Belgium, (c) Austria, 1878, J. 386, last common 1903, J. 410 ; Matrimonial Causes domicil of Austrian spouses in Austria Act, 1857 (20 & 21 Vict. c. 85), s. 6. founds jurisdiction in nullity and (z) Sottomayor v. De Barros (1877), divorce; 1886, J. 469 et seq., 1894, J. 3 P. D. 1 ; Niboyet v. Niboyet (1878), 1074, even where spouses were never 4 P. D. 1 ; Simonin v. Mallac (I860), domiciled in Austria; 1898, J. 942; 2 S. &T. 67; 29 L. J. P. & M. 97. France, 1878, J. 268, 602; 1887, J. 66, Westlake bases it on residence : s. 49, 187, not between foreigners; 1885, J. p. 89; Dicey, (2ik1) ed., r. 51, 268, 241; 1899, J. 799. In France resi- bases it on residence or locus cdebra- deuce is enough to found it : 1898, J. tionis; see Linke v. Van Aerde (1894), 1080 ; 1902, J. 151 ; Hay v. Northcote, 10 T. L. E. 426 ; Brennau v. Brenuan marriage in France, 1900, J. 613, Cass. (1902), 18 T. L. E. 467. NULLITY OF MARRIA(:4E. 943 law will govern (d). It was formerly said that foreign Courts have no right to annul a marriage between French subjects, even though the nullity is due to disregard of the form required by the lex loci {(') ; but this has not been approved (/). A French Court can entertain a nullity suit in respect of a marriage made abroad between a Frenchwoman and a foreigner, and can also by consent adjudicate on a defence of nullity in respect of a marriage between foreigners (g). The rules of the Institute provide that a marriage can be annulled if contracted outside the conditions of the national law of one of the spouses as regards age, prohibited degrees, publication of banns; as also it can be if contracted outside the conditions prescribed by the national law of the husband as regards consent of parents or guardians. A null marriage may, however, have the effects of a valid marriage if it is a putative marriage (/<)• {d) Weiss, iii., 572 ff, citing cases; (/) Clunet, 1877, J. 148. 1894, J. 1020, C. A., Lyons; 1875, J. {,/) 1880, J. 300, Paris; Wharton, 273, Eouen; 1884, J. 67, Seine ; 1884, 213; Feraud Giraud, 1885, J. 383, J. 627 ; 1882, J. 84, Seine ; 1885, J. 384. 296, Pontoise. The same rules apply (h) Lausanne Eules, 1888, rr. 8, 9; to foreigners in France, and apply in Ann. x. 77. For putative marriages, Italy; 1887, J. 49 ; Fiore, Weiss, iii., see 1889, J. 463, C. A., Paris; 1882, 575. J. 539, Bordeaux (marriage putative (e) 1877, J. 146, Seine. by lex loci); 1889, J. 616, Algiers. INDEX. Absolute bars to divorce. See Divorce and Judicial Separa- tion. prohibition to marriage. See Marriage. Capacity FOR. Accumt'io. 2i Acknowledgment (of deeds l»y married women), Australia, 347 rt seq. British Honduras, 350 Colonies, 347 ef .^eq. English law, 333, 694 Falkland Islands, 3.jO Gibraltar, 347 Hong Kong, 349 Irish law, 346 Man. Isle of. 346 New South Wales, 347 Scots law, 338 d seq. Straits Settlements, 349 United States law, 351, 753 West Africa, 350 West Indies, 349 et seq. AequetSy 495. And see MARRIED AVOMENS Property : French Law. Act of Parliament, divorce by, Canada, 879 English law, 861 Irish law, 877 Isle of Man, 877 legalisation of marriage by, 255 Actes respectuen.r, 106 Adherence, action of, 861 Administration of property, husband's power of, English law, 66G France, at common law. 515, 517, 550, 562 Germany, 590, 591, 595, 598,599, 605, 607 Italy, 579 et seq. Japan, 758 Man, Isle of, 730 Mauritius, 517, 550, 562 Quebec, law of, 515 Roman-Uutch law, 291 ef xeq. St. Lucia, 516, 570 Scots law, 338, 628, 631 Siani, 760 Spain, 583, 588 Swiss law, 610, 617, 620, 623 United States, 751 father's power of, notwithstanding marriage contract, 657 M.L. Administratri.K, right of married woaiau to be, English law. 335 United States, 351 Adoption. 12(t as impetliment to marriage, 12n canon law, 22 laws of France, Germany. Hungary, Itah'. Spain, Switzerland, 120. n. Komau law, 6 Adultery as ground of divorce, Austria. 839 British Guiana, 829 Canon law of Eastern Church, 81 1 Ceylon. 827 Denmark, law of, 853 England, 863 France, 829, 831 Germany, 844 Greece, 843 Hungary, 847 Ionian Islands, 844 Ireland, 877 Norway. 855 Portugal, 840 Pioman law, 808 Koman-Dutch law. 819 Roumania. 841, 842 Russia, 840 Scots law, 857 Servia, 842 South Africa, 825 Spanish law, 839 Sweden, 8.53 Swiss law, 849 Uniteil States law, 894 marriage of adulterer and adul- teress. Austria, 121 Belgium, 121 Ceylon. 97 Code Civil, 121 Germany, 121 Hungary, 121 Jews, 51 Spain, 121 And see DivoRCiis, RiiMAiutlAOE OF. Roman- Dutch law, 89 South Africa and Ceylon. 97 as bar to dower, English law, 690 as impediment to marriage. See Marriage, Capacity for. 60 946 INDEX. Affinity, Austria, 119 British Guiana, 96 Canada, 139 Canon law, 21 Ceylon, 96 Colonies and dependencies, 138 English law, 136 France, 117 Germany, 119 Irish law, 138 Italy, 120 Mauritius, 119 Quebec, 118 Roman law, ;"5, 6 Roman- Dutch law, 86 Scots law, 138 South Africa, 95 Spanish law, 117, 118 Swiss law, 120 United States, law of, 139 St. Lucia, 119 Seychelles, 119 no affinity between spouses' kindred, 5 Canon law, restricted to primary, 22 Eastern canon law, 58 Illegitimate affinity, Roman law, 6 Canon law, 23 English law. 137 Age, marriageable. See. Markiage, Capacity for : Age. Agency (of wife for husband). Colonial law, 347 et seq. English law, express, 329 implied during cohabitation, 330 while living apart, 331 ostensible, 332 Trance. 314, 315 Germany, 323 Italian law, 321 Quebec, 314 St. Lucia, 316 Scots law, jiraqwsitura, 342 ended by inhibition, 843 Spanish law, 322 Swiss law, 323 Agreements for separation, English law, 336 France, 321 Holland, 321 Spain, 321 Scots law, 344 And see Voluntary Separa- tion ; Separation Deeds. Agreements in derogation of conjugal rights. See IIusBAND and Wife : Agreements in Derogation of CON.JUGAL Rights. Alberta. See CANADA ; North-West Teuritokies. Alimony of wife, in proceedings for divorce or judicial separation, Belgium, 838 Alimony of wife — continued. in proceedings for divorce, etc. — confd. English law, 870 Norway, 856 Scots law, 861 United States, law of, 895 provision for, in marriage contracts, Scots law, 654 Anguilla. See alio West Indies. celebrat ion of marriage, 208 American law. See United States, Law of. AmpithU.ssement (clause of), 569 Anglican Church. See Church of England. Annus luctus. See Marriage, Capacity FOR : Annus luctus. Ante-nuptial debts of wife, husband's liability for, English law, 327, 696 France, 306 Quebec, 306 Roman-Dutch law, 400 St. Lucia, 306 Scots law, 644 United States, law of, 755 private international law as to, 796 Ante-nuptial settlements. See Settle- ments, Marriage ; Marriage Con- tracts. Anticipation, restraint on, 705 — 710 And see Married Women's Pro- perty : English Law. Antigua. See also West Indies. affinity and consanguinity, 138 celebration of marriage, 208 consent of parents to marriage of minors, 132 dower, 748 married woman's property, 749 slaves, formerly property in, 747 Apportionment of provisions in marriage contract, Scots law, 661 Arakanese, marriage of, Burmah, 69 Argentine Republic, deceased wife's sister, marriage with, 260 divorce, 840 Army, British, marriage within lines of, 186 German, authorisation for marriage of soldiers in, 123 Russian, authorisation for marriage of soldiers in, 123 Ascendants and descendants, marriages between. See MARRIAGE, Capacity for: Affinity and Consanguinity. Asura marriage. Hindu law, 216 Attainder, Act of, effect on marriage, 255 Australasia, law of. And sec also the several States. Australia, affinity and consanguinity, 138 celebiation of m.arriage, 202 consent of parents to marriage minors, 130 INDEX. 947 Australasia, law ol— continued. Australia — continued. deceased wife's sister, marriage with. 137, 138, 260 divorce and judicial separation, 881 ct .seq. dower, Tlo et sei). married women's property, law of. in, 745 ct ncq. personal cajiacity and status of wife, 347 acknowledgment of deeds by wife, 347 Austria, law of, affinity and consanguinity, Hi) age, marriageable, 100 consent of jiarents to marriage of minors. 111 of third parties. 111 deceased wife's sister, marriage with, 260 divorce, 839 separation of Jews, 839 marriage, capacity, requirements and prohibitions, 102, 103, 114, 119, 121—123 celebration of, 165 impediments to, 229 nullity of, 229 promise of, 157 spouses, personal rights and duties of, 326 property relations of, 607 Authorisation, marital. *.Scec/?so ACKNOW- LEDGMENT OF Deeds. English law, 329 et seq. Roman-Dutch law, 280 et seq, Scots law, 337 et seq., 342 United States, law of, 351 A utofisation inaritale, laws of France, Quebec, and St. Lucia, 307 form of, 308 general or express, 308 by ratification, 310 judicial, 311 revocation of, 311 Germany, 323 Italy, 321,323 Malta, law of, 347 Portugal. 323 Spain, 322, 323 Switzerland, 323 et seq. Bahamas. AV aUo West Indies. acknowledgment of deeds, 349 affinity and consanguinity, 138 celebration of marriage, 207 consent of parents to minors' mar- riage, 132, n. divorce and judicial separation, 886 dov*-er, 748 slaves not subject of, 747 married women's property, 749 personal capacity and status, 347, 349 Bankruptcy, marriage settlement, effect of, on, P:nglish law, 728, 729 provision against, in Scots law, 663 husband released from wife's ante-nuptial debts, Scots law, 645 effect of, on proprietary relations of spouses Rcnerally, 802 Swiss law, 616 Bairns' part, 626 Banns, Belgium, 161 Channel Islands, 194 Canada, 1 95 Canon law, Eastern Church, 56 Western Church, 18 Colonies, 205 et fteq. English law, 179 French law, 158 Irish law, 188 Man, Isle of, 194 Roman-Dutch law, 153 Scots law, 1 89 South Africa, law of, 155, 212 United States, law of, 218 Barbados. See also West Indies. acknowledgment of deeds, 349 affinity and consanguinity, 138 celebration of marriage, 2G6 consent of parents to marriage of minors, 132 divorce and judicial separation, 887 married woman, personal capacity and status of, 349 property of, 748, 749 dower of, 748 slaves, property in, 747 Bars to divorce. See DivouCE and Judicial Separation. to marriage. See Marriacje, Capacity for. Bechuanaland, celebration of marriage, 212 Belgium, law of, agreements in derogation of conjugal rights, 321 celebration of marriage, 161 consent of parties to marriage, 101 third parties, 108 deceased wife's sister, marriage with, by dispensation, 260 divorce and judicial separation, 837 by mutual consent, 838 marriage, capacity for, re. 1 29 curtesy, 733 deceased wife's sister, marriage with. 139 divorce and judicial separation, 878 dower, 737 married women's property, in, 740 penalty for procuring of marriage, 195 INDEX. OV.) Canonical marriage, Spain, 168 Canonical secret marriage. Id!) Canon law of marriage of Western Church, development of, \'> 1. Character and formation of status, 17 clandestine marriages, 18 2. Capacitj' and formal impediments, I'J destructive and iiroliibitive, 19 (1) Destructive iuipedimeiits, I'J want of consent, 20 absolute incapacity or dis- ability, 20 relative incapiicity or dis- ability, 20 l)roliibited degrees of rela- tionship or atliuity, 21 adultery and murder, 23 ravishment, 2:? (2) Prohibitive impediments, 24 ecclesiastical injunction, 24 prohibited seasons, 24 betrothals, 24 vows of chastity or religion, 24 3. Ways of impugning the validity of marriages, 24 ncciisatio, 24 dcnunfiatio, 25 4. Second marriages and concubin- age, 25 5. Dispensations, 25 t). Canon law since Council of Trent, 27 marriage ceremony, 27 consents, 29 impediments, 29 ( 'anon law, effect of. in different countries, Austria, 30 Denmark, 36 Dutch Republic, 37 England, 40 France. 30 Germany. 3(! Hungary, 30 Ireland, 45 Italy, 31 Norway, 35 Protestant countries, 32 Scotland, 44 Spain, 31 Sweden, 35 Switzerland, 31 United States, 4id see Summary Jurisdic- tion. as ground of divorce, Austria, 839 Belgium, 837 Colonial law, 878 et seq English law, 864 France, 831 German law, 844 Greece, 842 Hungary, 848 952 INDEX. Cruelty — cotifimied. as gi'ound of divorce — continued. louiau It^lands, 844 Italian law, 840 Norway, 855 Portugal, 840 Roumania, 841 Kussia, 841 Scots law, 857 Servia. 842 Spain, 839 Sweden, 853 Swiss law, 848 United States, law of, 894 Cuitesy of England, 678 in the colonies and dependencies, Canada, 733 Jamaica, formerly slaves subject of, 747 Trinidad, 750 West Indies, 749 the United States, 754 of Scotland, 632 "Custody of children, on divorces or judicial separation, English law, 870 French law, 835 German law, 846 Norway, 856 on decree of nullity, Spanish law, 286 Swiss law, 237 Cyprus, law of, marriage, celebration of, 210 consent of parents to mar- riage of minors, 131 divorce, 889 Damages, on divorce, Ceylon, 828 English law, 872 Mauritius, 891 for brcacli of promise, Britisli Guiana, 206 English law, 174 French law, 156 German law, 157 Italian law, 157 Scots law, 174 Spanish law, 157 Swiss law, 157 United States, law of, 176 Deceased wife's sister, marriage with. IJritish Guiana, 96 Canada, 139 Ceylon, 96 Colonial laws, 138 English law, 137, 138, 259 Foreign laws, 260 Ireland, 138 Private International law, 259 Scots law, 1 38, 260 South Africa, 91 Cape (Colony, 95 United States, 139 Decree, of divorce or judicial separation effect of. See Divorce. of nullity. And see Nullity of JIarbiage. effect of, English law, 223 United States, 224 of validity, 223, 224. Deeds of separation. See Separation Deeds. Defeasance, of donations infer nu/Jinjcx, 652 Degrees, computation of, Canon law, 21 civil law, 21 Delay, as a bar to divorce, Ceylon, 827 English law, 866 implying condonation, Scots law, 858 Demi dditaire, 542 Denmark, law of, deceased wife's sister marriage with, by dispensation, 260 divorce, 852 And see Divorce : Denmahk. Denuntiatio (de ^;f?«*«f(i com m it fend a). 25 Deimntiationes, 18 Descendants and ascendants, marriages between. See Marriage, Capacity FOR. Desertion as a ground for divorce or judicial separation, Austria, 839 British Guiana, 829 Burmah, 901 Ceylon, 827 Colonial law, 878 et seq. English law, 865 French law, 831 German law, 844 Greece, 843 Hungary, 847 Ionian Islands, 844 Italy. 840 Japan, 903 Norway, 855 Portugal, 840 llom an -Dutch law, 820 lloumania, 842 Kussia, 841 Scots law, 857 Servia. 842 Siam, 903 South Africa, 825 Spanisli law, 839 Sweden, 854 Swiss law, 849 United States, law of, 894 DlKunathdtx, 67, 68, 69 J) it/a inns, 25 Discontinuanc*; of connuunity. See Community ; JIarkied Woman's i'hopkuty. INDEX. 953 l>iscrotionaiy bars to divorce. St'c DivoRCK aiul Judicial Sepakatiox. Disease, infectious, as inipediiiient to mar- riage. Sfie Marhiaqk, Capacity for. Dispensaticn from imi)cdiments to marriaj^c, 2.") deceased wife's sister, 200 uncle and niece, 2(51 Private International law, 253, 273 to marry after divorce, German law, 848 Divorce and judicial separation, comparative legislation generally, 838 termination of statute of marriage by divorce, 80<) distinction between divorce a mensa ft tort) and divorce a vinculo matrimonii, 80tj Canon law, 808 Eastern Church, 811 Riiman law, iiWi Western Church, 808 Argentina, 840 Australasia, 881 Australia, 881 powers of Commonwealth Parliament, 881 New South Wales, 881 Queensland, 884 South Australia, 884 Tasmania, 884 Victoria, 884 Western Australia, 885 Fiji, 888 New Zealand, 886 Austria, 839 Belgium, 837 Brazil, 840 British Central Africa, 892 British Guiana, judicial separation, 818 divorce generally, 828 British Honduras, 887 British India, 89(;, 900 See aho Hindu Law and Muhammadan Law. Christians, 900 Parsees, 900 . Burmah, 901 Canada, 878 powers of Federal Parliament. 878 dissolution by legislative enact- ment, 879 Alberta. See North - West Territories. British Columbia, 880 Manitoba, 881 New Brunswick, 880 Newfoundland, 881 North-West Territories, 881 Nova Scotia, 879 Ontario, 879 Prince Edward Island. 880 Quebec, 881 Saskatchewan. See North- West Territories. Divorce and judicial separation — rouUl. Ceylon, 817 judicial separation, 817 divorce generally, 82(! grounds for divorce, 827 effects of divorce, 827 procedure, 827 ^luliammadan divorces, 828 restitution of conjugal rights, 829 Channel Islands, 87S Chili, 840 China, 902 Cyprus, 889 Denmark, 852 adultery as a ground for divorce, 853 grounds for divorce, 853 how obtained, 853 East Africa, 892 English law, 861 dissolution by Act of Parliament, 861 judicial sejja ration, 863 ])roof of adultery, 863 divorce a vinculo, 862 (a) bigamy with adultery, S(H Ih) cruelty, 864 (<•) desertion. 865 bars to divorce, 866 absolute bars. 866 {(i) connivance, 866 {b) condonation, 866 [c] collusion, 868 discretionary bars, 869 maintenance, alimonj', variation of settlements, 870 damages, 872 restitutionof conjugal rights. 873 judicial se{)aration, 874 comjjensafio rrimini.<^, 874 summary jurisdiction, 875 ex-territorial jurisdiction, 892 Falkland Islands, 888 French law, old French law, 829 Code Civil, 830 law of 27th July, 1884. ..830 grounds of divorce in French law, 831 (ti) adultery, 831 {b) e,rci:s,serice.i, injurcx qra rrx, 831 {e) conviction for certain crimes, 832 procedure, 832 jn'ovisional measures, conserva- tory measures, bars, 833 effects of divorce, (i.) as regards the person of the spouses, 833 (ii.) as regards the property of the spouses, 834 (iii.) as regards relatives by marriage, 835 (iv.) as regards the children of the marriage, 835 954 INDEX. Divorce and judicial separation — contd. French law — continued. judicial separation, 835 effects of, 836 decree of divorce or judicial separation, res judicata, 837 voluntary separation, 837 Germany, 844r (a) divorce, 844 grounds of, 844 rules as to time, 845 finding as to guilt of parties, 845 effects of divorce, 845 («) freedom to remarry, 845 (/;) divorced wife and husband's family name, 845 (c) mutual rights as to pro- perty and maintenance, 846 [d) care and custody of children, 846 (b) judicial separation, 847 (c) rules as to jurisdiction, 847 Gibraltar, 889 Greece, 842 Hindu law, 896 Hong Kong, 889 Hungary, 847 Ionian Islands, 844 Irish law, 877 Isle of Man, 877 Italy, 839 Japan, 9U2 divorce by consent, 902 by judicial decree, 903 grounds for divorce, 903 bars to divorce, 903 Malta, 889 Man, Isle of, 877 Mauritius, 890 Mexico, 840 Muhammadan law, 897 forms of divorce, Taluh, 897 Klnila divorce, 898 judicial divorce, 898 Mnharat, 898 effects of divorce, 899 Norway, adultery, 855 disease, 856 effect of divorce, 855 grounds for divorce, 855 Portugal, 840 lioman-Dutch law, generally, 812 Hpparutio a incnsa ct toro, 815 divorce, 818 adultery, 819 malicious desertion, 820 other grounds, 822 dissolution through death, H29 effect of, 823 iioumania, 841 lliissia, 840 Orthodox, Hid Divoi'ce and judicial separation — c47 '■/ seq. English law, 332 Germany, 326 Scots law, 344 INDEX, 957 Eu) cuKKd jiiifrdafi.t, impediments. (> £cce.-<. Austria, 8:>i( Belgium, 8157 France. 8:51 Italy, 840 Malta. SS'.t Koumania, 842 Executrix, right of marrieil woman tube, English law, 8S.") Exterritorial jurisdiction in divorce, 892 Exterritorial mairiagc, divorce. 892 Ealkhmd Islands. acknowledgment of deeds, 330 consent of parents, 182 divorce and judicial separation, 888 summary jurisdiction for protection of married women, 888 Federated Malay States, Negri Sembilan, Pahang, Perak, Selangor. celebration of marriages, 211 consent of parents to minors' marriages, 181 Frme sole, married woman, trading as, 710 Fiji, See Australia. affinity and consanguinity, 138 celebration of marriage, 205 consent of parents, 132 divorce and judicial separation, 888 married women's property, 746 next friend, appointment of, 3.50 personal capacity and status, 350 Force, as impediment to marriage. See Marriage, Capacity for : Consent OF Parties. Foreign Marriage Act, 1892.. .184— 186 Franc et qi/ifte, clause of, 565 Franc vex rage, 575 Fratrrnitas. 22 Fraud, as impediment to marriage. See Marriage, Capacitv: for : Consent OF Parties. Fraud of creditors, marriage settlements in, 728 Freebench (widow's) copyholds, 685 Freeholds, wife's, husband's power over, 677 wife's interest in husband's. See Dower. French law, adulterer and adulteress, marriage of, 121 affinity and consanguinity, 117 age, marriageable, 97, 98 agreements in derogation of conjugal rights, 320 agreements for separation, 321, 837 celebration of marriage, 153 proof of, 162 French law — continned. consent to marriage, of parties, 101 of third parties, 105 continuance of community, 531 custody of children on divorce, S33, 835 deceased wife's sister, marriage with, 268 divorce and judicial separation, 829 And iter Divorce and Judiciaf, Separation: French Law. domicil, efiEect of change of, on proprietary right of spouse, 777, 779 donations 'niter conji/f/e.s. 555 e- 1. rule of in rpm rersuvi, 389 2. separation, 38'J 3. obligations which can onlv be validly fulfilled by wife, 341 4. husband's im- prisonment, 341 5. wife holding herself out as unmarried, 841 statutory exceptions, 341 (1) protection order, 841 (2) policies of in- insurance, 841 (3) earnings, and income of sepa- rate estate, 342 wife's pro'positnra, 842 howconstituted,342 scope of authority, 842 termination of, 343 inhibition, 848 agreements in derogation of marital power, 344 separation agreements, 344 Irish law, 846 Isle of Man, 346 Trench law and laws of Quebec, St. Lucia, Mauritius, Sychelles, and tlie Channel Islands, 300 authorisation necessary, 301, 302 acts without authorisation null, 803 Code Civil and laws of Quebec and St. Lucia, 800 et seq. ester enjvfievient, 303 alienation, .302 when married woman bound without authorisation, .30ij ante-nuptial obligat ions, under the rui/tnines, .30.") under Code Civil and law of Quebec, 306 collateral security for wife's ol)ligation, 30() position of surety, 307 husband's authnris;it ion, minority of husband, 307 of wife, 808 form of authorisation, 808 general or express authorisa- tion, 808, 310 rmitvme de Pari.i^ :>09 Code Civil, .-tot) Husband and wife — confinued. French law, etc. — eonti^med. husband's authorisation — contd by I'atification, 310 effect of ratification, 311 judicial authorisation, 311 revocation of authorisation. 811 husband's marital power. effect of Sc'paration de hien-< and sijjaratioii de covp.-t, 811 wife's implied authoritj', general authority to alienate immovables null, 312 wife as marcliande puMique, 813 definition of, 318 scope of authority. 81 S wife's domestic agencj', 814 ecntume de Paris.^ 814 Code Civil, 315 whether wife, as marchande pnhliquc, could sue or be sued, 317 effect of authority of court. 318 termination of marital power, 319 mutual personal rights and duties of spouses, 319 coutnme de Kormandie, 319 law of Channel Islands, 320 German law, 323 wife's capacity and power of agency, 328 personal rights and duties of spouses, 32.5 Italian law, 321 Japan, 357 Eoman law, 276 lloman-Dutch law, 279 husband's marital power, 291. 295 matrimonial pro- perty, power to bind, 292 administration of wife's propert v. 291 limitation of marital power, 29.3. 298 marital power compared with guardianship, 294 uersonal effects of marriai,''e. '279 alienation of property, 281 contracts, 282 exemption from arrest, 285 incapacity of, 29.") legal proceedings, 280 limitation of wife's capaeitv. 280 of marital power. 293 liability for husband's torts, 293 INDEX. 9G1 Husband and wife — continued. Ixoni.an- Dutch law — continued. wife's power to bind liusband and community, 28i? rights of succession, 28G suretyship, wife's incapacity. ' 28t!, 29(5 where privilege could be pleaded, 281) exceptions, 287 Justinian's legislation, 287 moditication of Konian law, 288 exceptions, 288 renunciation of privi- lege, 289 testamentary power, 285 Siaiu, 3r)8 South Africa, 295-298 Spanish law, 322 Swiss law, 323 United States, 3o0 acknowledgment of deeds, 351 general legal position of married women, 351 marital com()ulsion, 352 suretyship of married women, 351 Hypothec, legal, of married woman, France, 114, 570 Quebec and St. Lucia, 570 Swiss law, 611 Lhhit, U6 Illegitimate consanguinity and affinity, 137 Austria, 119 Canon law. 23 English law, 137 France, 118 Germany, 119 Italy, 120 Mauritius, 119 Quebec, 119 Seychelles, 119 Spain, 118 Swiss law, 120 Immovable property, husband's power over wife's, English law, 675, 677 French law, 495 community, 494 prescription of, 552 German law, 590 Italian law, 580 Quebec, law of. Sec FRENCH Law. Koman- Dutch law, community, 399 British Guiana, 422 Ceylon, 420 South Africa. 419 Scots law, 628, 633 Spanish law, 584 ct seq. Swiss law, 610 et seq. United States, law of, 753, 754 M.L. Immovable property, etc. — continued. private international law, as to. See Married Women's Property : Private Interxational IjAw. Jiii/n'diinenta, dirimentia, 219, 251 et neq. juriit puhlici, 226 juria priniti, 226 Impedimenta iinpedientia, 251 Inipediinrntti pro/iihitiia, 219, 241 Impedinieiits, destructive, 19. See Nullity. liupediments, c.e causa potest at is, 6 Impotence as an impediment to mariiagc. See Marriage, Capacity for. In rem rcrsum, 339 In articulo mortis, marriages, 1, n., 205, 206,207,211 Incest, an impedimentum dirimens. Ceylon, 96 English law, 137 private international law, 259 India. Sec British Lndia. Indian immigrant, marriage and divcrce. 205, 886 Inequality of shares (clause of), 566 Infancy. See Minority. Infants, marriage settlements, 726 et seq. Infectious disease, as impediment to mar- riage. See Marriage, Capacity for. Inhibition by husliand against wife, 343 Injures graces, ground of divorce or judicial separation, Austria, 839 Belgium, 837 France, 831 Italy, 840 Malta, 889 Mauritius, 890 Portugal, 840 Roumania, 842 Spain, 839 Insanity, as ground of divorce or judicial separation, , Denmark, 853 German law, 844 Swiss law, 849 United States, law of, 893 as impediment to marriage, Austria, 103 Code Civil, 103 English law, 124 Germany, 103 Italj', 104 Russia, 104 Scots law, 125 Spain, 104 Swiss law, 104 United States, 126 Insurances by spouses, English law, 334, 721 Inyentor}^ by wife, common as to pro- perty, legal community, French law, conventional community, 529, 530 61 962 IXDEX. Invcntoiy, by wife, etc. — continued. legal community — continued. French law — cuntinncd. reparation de dettes, oO-J- Quebec, law of, 529 Ionian Islands, divorce and judicial separation in, 814 Ireland, law of, acknowledgment of deeds, 316 affinity and consanguinity, 138 fige, marriageable, 123 consent to marriage of third parties, 129 deceased wife's sifter, marriage with, 137 divorce, parliamentary, 877 marriage, celebration of, 187 personal capacity and status of hus- band and wife, 316 Irregular marriage in Scots law, 100 Eastern Church. 59 Society of Friends, 52 Isle of Man. See Man, Isle of, Ital}% law of, affinity and consanguinity, 120 age, marriageable. 98 agreements in derogation of con- jugal rights and duties, 321 consent to marriage, of parties, 1U2 of third parties, 110 divorce, 839 marriage, celebration of, 166 married woman, capacity of, 321 rights and duties of spouses, 325 married women's property, 578 .imllity of marriage, 231 effect of decree for, 236 oppositions, 167 jtcrsonal capacity and status, 321, 325 j)romise of marriage, 157 suretyship of married woman, 323 Jamaica. 6Vr aZ-so West Indies. acknowledgment of deeds, 349 affinity and consanguinity, 138 celebration oi marriage, 205 consent of parents, 133 curtesy, 717, 719 divorce and judicial separation, 886 dower, 748 in slaves, 716 married women's propertj', 718 (jursonal capacity and status, 349 slaves, property in, 74() Japan, iige, marriageable, 73, 100 divorce, 902. And sec DiVOHCE Japan. . marriage ceremony, 72 married women's property, 758 personal ca])acity and status, 357, 75i Jersey. >1//^/ .srr Channel Islands. alHnity and consaTiguinil}', 138 celebration of marriage, 194 consi.nt of parents, 131 Jersey — con'inned. divorce and judicial separation, 878 donation inter conjuge.s. 576 dower, 573 droit de viduite. 575 franc reurage, 575 married women's property, 571 personal capacity and status, 320 .Separation de liens, 571 Jews, affinity and consanguinity, 119 age, marriageable, in Austria, 119 divorce of. in Austria, 839 ■ in Eussia. 810, 841 impediments to marriage, 51 Kiddushim, 50, 51 marriage of, generally, 49 marriage of, with Christians for- bidden by Church, 88 Australia, 203 Austria, 121 Canada, 198, 200 England, 183 Ireland, 187 nissu or cJtupjia. 50 private international law as ta Jewish marriages. 269 reeistratiou of marriage in England,. "51 Jointure, 724 Judicial divorce in Muhammadan law. See Divorce : Muhammadan Law. Ju'licial separation. See Divorce and Judicial Separation. Ji/.s administrationis, 628 JiiM crediti, provisions in luarriage settle- ments may confer. 658 Jus mariti, 337, 339, 310, 626, 627, (529 Jus relict te. 626, 653 Jus rclicti, 653 Kanwin, 757 Kliula divorce, 898 Xinderhea-j/s, 436 — 441 Kong-vmn, 75 Labuan, consent of parents to marriage^ 131 I^ady's gown, 628 Leeward Islands. See also West Indies and Anguilla and Antigua ; Dominica; Montserrat; Nkvis ; St. Christopher's (St. Kitts) ;. Virgin Islands. affinity and consanguinity, 138 celebration of marriage, 208 consent of parents, 132 divorce and judicial separation, 886 dower, 718 married women's properly. 719 personal capacity ami statu-*, 319 slaves as property formerly, 717 Legit ini, 653 IXKKX. i)G3 Lcnoc'inium, 858 Let ct pic a, Ihl Lc.i'fori, inarriage, impediments by, 257 piohibited, degrees, by, 289 divorce, conflict between personal law as to grounds of divorce, 1)27 separation, effect of, in, 987 in relation to validity of marriage, 257 et «-y. J.i'.v loci celchnitionis, effect, capacity for marriage, 250 form of marriage, 2G3 in relation to personal status of spouses, 255, 359, 37-1, 378 in relation to validity of marriage, English law, 240,"213, 241 foreign law. 243 Scots law, 243, 345 United States law, 243 Lex loci cotitractus. See Lex Loci Celk- ]:i:ATioyis. Lex situs, effect of, on donationcs inter conjiif/es 803 debts and charges on, 798 disposition of. 795 immovables, 790 marriage contracts, 799 mutual rights of spouses to, 79G in relation to proprietary rights of spouse, scope of, as regards Jewish law, 765 Lex domicilii. See DOMICIL. Lex Julia de fuiido dotal i, 385 Lex PajAa Poppaca, 9 Licence, marriage, colonies and dependencies, 1 93 ct seq. English law, 181 ordinary licence, 181 special licence, 182 superintendent registrar's licence. 182 Irish law, 187 Scots law, 189 South Africa, 91, 93 United States, law of, 217 Lower Canada. See Quebec. lAitheran Church in Russia, divorce, 841 Luxemburg, age for marriage, 1 00 Maintenance of wife in proceedings for divorce and judicial separation. Sec Alimony. Malabar marriage, 216 Malta, law of, celebration of marriage, 209 divorce and judicial separation, 889 married women's property, law of, in, 583 personal capacity and status, 347 testamentary capacity, 347 Man, Isle of, celebration of marriage, 194 Man, Islo oi~ci China, 70 Code Civil, 97, 98 Colonies, 123 Englisli law, 123 France, 97 Germany, 99 Hindu law, 143 Holland, 100 Hungary, 100 Irish law, 123 Italian law. 98 Japan, 73, iOO Jcwisli law, 51 Luxemburg, 100 Mauritius, 98 Muhammadan law, 144 et se(j. Ontario, 123 Quebec, 98 Queensland, 123 Iioman-Dutch law, 76, 77 British Guiana, 91 Ceylon, 91 South Africa, 91 Roman law, 4, 7, 97 Russia, 100 St. Lucia, 98 Scots law, 1 23 Seychelles, 98 Siam, 74 Spain, 99, 100 Swiss law, 100 United States, law of, 123 Annus lucius, as impediment to, Austria, 115 Canon law, 24 France, 114 Germany, 115 Holland, 115 Hungary, 115 Italy, 115 Japan, 73 Orange Free State, 9." Koman-Dutch law. HI Marriage, capacity for — continued. Amm.s liirtus. etc. — continued. South Africa, 94, 95 Spain, 115 Transvaal, 95 consent of parties, force or fear, crime or fraud, mental disorder, Austria, 102, 103 Buddhist law, 68 Canon law, 20 China, 70 Code Civil, 100, 101, 103 English law, 124, 125 Germany, 102 Hungary, 103 Italy, 102, 104 Roman law, 7 Roman- Dutch law, 77 British Guiana, 91 Cevlon, 91 South Africa, 91 Russia, 104 Scots law, 125 Siam, 74 Spain, 103. 104 Swiss law, 103, 104 United States, law of, 12r, consent of third parties, Australasia, Australia, 130 et .icq. Fiji, 132 New Soutli Wales, 130 New Zealand, 131 Queensland, 131 South Australia, 131 Tasmania, 131 Victoria, 131 Western Australia, 131 Austria, 111 Belgium, 108 British Central Africa, 132 British Honduras, 132 liui'niah, 1)8 Canada, 129 ct aeq. Newfoundland, 130 Ontario, 129 Quebec, 108 Colonies, 129 et seq. Cyprus, 131 East Africa, 132 English law, 127, 128 Falkland Isles, 132 Federated Malay States, 131 Freneli law, 105 old law, 105 Code Civil, 105 ct scq. German law, 1 1 1 Gibraltar, 131 Guernsey, 131 Hungary, 111 Hong Kong, 131 Ireland, 129 Italy, ll(t. Japan, 72 Jersey, 131 INDEX. 965 Marriage, capacity for — continued. consent, of third parties — eontiuued. T.abuaii, 131 Mauritius, lOS Nortii Borneo, 131 Korth-Easterri Rhodesia, 132, n. Roman law, 7 Itouian-Dutch hiw, 7S t^t .svv/. Britisli Guiana, 91 Ceylon, !)3, 131 South Africa, 92 Russia, 112 St. Helena, 132 Scots law. 127 Seychelles, 10!) Sonialiland, 132, n. Spain, 10!) Straits Settlements, 131 Swiss law, 112 Uganda, 132, n. United States, law ;; China, 71 Civil and Canon law, 5 English law, l.SG France, 117, 118 Germany, 119 Irish law, 1S8 Italy, 117, 120 Japan, 73 Jewish law, M Mauritius, 11!» Konian-Dutch law, 86 British Guiana, 1)6 Ceylon, DO tSouth Africa, 95 St. Lucia, 119 Scots law, 138 Seychelles, 119 Siam, 74 Spain, 117, 118 Swiss law, 120 United States. 139 Colonies, 138 Itavishment and abduction, as impediment to marriage, Austria. 122 (.'anon law, 23 Eastern Church, .">9 France, 122 Greece, 122 Koman law, 23 lioman- Dutch law, 89 Ceylon, 97 South Africa, 97 Servia, 122 Marriage, celebration of, forms of, African Protectorates, 213 Australasia, 202 Australia, New Soutli Wales, 203 Papua, 203 Queensland, 203 South Australia, 203 Tasmania, 204 Victoria, 202 Western Australia, 2ti3 Fiji. 205 New Zealand, 204 Austria, KJS liechuanaland, 212 I'.elgium, 101 oppositions, 164 Pritisii Army, marriage within lines of, iSiJ liritish Central Africa, 2U I'.ritish India, 214 (Jhristian mairiage, 215 Hindu law. 216 J!nih)ii(i, 216 A mini, 21('> Malabar (Sambuiid- ham), 216 Muhiinunadan law, 21i>, 217 Marriage, celebration of — nontt/aird. forms of — coHt'inncd. British India — cont'niued. Parsees, 217 undenominational, 21 7 British subjects, foreign marriage of, 184 Canada, common law, 178 powers of Dominion Parlia- ment, 195 Alberta, 2(»0 British Columbia, 195 199 Manitoba, 199 New Brunswick, 198 Newfoundland, 201 North-West Territories, 195, 2U0 Nova Scotia, 197 Ontario, 196 Prince Edward Island, 198 Quebec, 202 Saskatchewan, 20t) Canon lav,', 15, 18, 27-29, 147 Eastern Church. S6, 57 Ceylon, 21(i Channel Islands, 194 Cyprus, 210 East Africa, 213 English law, 177 common law, 177 statute law, 178 banns, 179 licence, 181 (a) licence of ordi- nary, 181 (i) special licence, 182 ((•") licence of super- intendent re- gistrar, 182 registrars certificate, 183 Koyal marriages. 183 Jews and Quakers, 183 marriaf.'cs of British sub- jects and foreigners, 184 marriages within lines of British Army, 186 naval marriages, 186 Kall, 147 Koman- Dutch law, 1 IS rt acq. ]?ritisli CJuiaiia, l.')t) Ceylon, lo(i formal requirements, 152 publication of banas. 153 South Africa, l.'o Cape Colony, l.").' Natal, 15(; ' Orange Free State, l-'ici Ti'ansvaal, lo6 Russia, 171 St. Helena. 213 Scots law, LS'.l legular marriage, 18'J clandestine marriage, l'.)t' irregular marriage, 1!)0 J. Pi'r rrrhd de i^frf.icati, r.)o II. l>y promise, .■oth.^r- qvcnie copula, 191 III. By habit (''habite"") and repute. 192 Sej-chelles, 213 Somaliland, 214 South Africa. 155, 211 Cape Colon V, 155. 211 Natal, 1.5(), 211 Orange Free State, 15C., 212 Transvaal, 150, 212 Southern Khodesia, 214 Spanish law. 1(58 et seq. I. Canonical marriage, 168 canonical secret mar- riage, 109 II. Civil marriage, 17U Straits Settlements, 210 Sudan, 214 Swiss law, 172 oppositions, 173 Uganda, 214 Fnited States. 2i7 form, 218 licence,. 21 7 return and record, 218 who may^ solemnise. 218 West Africa, 213 Gambia, 213 Gold Coast Colony, 213 Sierra Leone, 213 Southern Nigeria, 213 West Indies, Anguilla, 208 Antigua, 208 Bahama. 207 Barbados, 206 Bermuda, 207 British Guiana, 206 British Honduras, 200 Dominica, 20 Parsce marriages, 07 Christian marriages, 67 Boman law, 4 lioman-Dutch law, 10 Japan, 72 Siam, 74 Marriage, validity of, private international law, 240 former view — le.c loci contractus governed capacity and form. 240 Eughsh law, 242 foreign law, 213 Scots law, 243 United States, 243 rule limited by recognising incapacities imposed by [lersonal law. 244 English law. 244 Scots law, 245 foreign law, 216 present view — personal law governs capacity, 246 recognition of personal law, 249 incapacities imposed by personal law, 251 intpcdinicnta dirimentia and im- licdientid, 251 leligions incapacities not gener- ally recognised, 252 dispensations, 253 consent of State authority, 253 j/ririlcf/iit, 254 British Eoval Marriage Act, 254 British Act of Attainder, 255 marriage legalised by special Act, 255 must both parties be capable by their personal laws, 255 U.TSonal law may prevail over le.r loci celehrationi.'i, 250 h-.v fiiy'i^ polygamy, 257 968 INDEX. Marriage, validity of — continued. private international law — cuntd, prohibited degrees, incest. 259 ascendants and descendants, brothers and sisters, 259 collaterals, 259 marriage with deceased wife's sister, 259 imcle and niece, 2 "Western Australia, 746 British Guiana. See BojiAX- DUTCH Law. Canada, 733, 740 Alberta, 745 liritish Columbia, 715 Miinitoba, 712 New Biunswi ;k, 711 Newfoundland, 715 North-Wcst Territorii'S. 715 Married women's Y>vopeYij— continued. colonies, etc., laws of — continued'. Canada — continued. Nova Scotia, 735 Ontario, 734, 741 Quebec, 733 And see Fbench Law, 476 et seq. Prince Edward Island, 736. 745 Saskatchewan, 745 Yukon, 745 Ceylon, 420 Gibraltar, 751 Hindu law, 756 Hong Kong, 751 Malta, 583 Man, Isle of, 730 Muhammadan law, 757 Roman-Dutch law. See that head, 2)0.tf. South Africa. -S'^^" Rojian- DuTCH Law. Straits Settlements, 751 St. Lucia, 479. 571 .Si'c Married AVomen's Pro- perty : French Law. St. Vincent, 718, 749 Trinidad and Tobago, 749 Turks and Caicos Islands, 749 Virgin Islands, 748 West Africa, Gambia, 751 Gold Coast Colony 75 1 Sierra Leone, 751 West Indies, 746 et -seq. Antigua, 747, 748 Bahamas, 749 Barbados, 747, 749 Bermuda. 747, 749 Dominica, 748 Grenada, 749 Jamaica, 749 Leeward Islands, 749 Montserrat, 748 Nevis, 748 St'. Christopher, 748 English law, 664 I. Rights of husband, in wife's property during her life, 666 choses in possession, 666 choses in action, 666 right of action, 667 personal property, 6()9 equitable choses in action, 669 Icg.'d choses in action, 670 reversionary choses in action, 671 equity to a settlement, 672 husband 1)}^ settlement on wife ac(|Uires her choses ill action, (■)75 husband's power over wife's ciuittels real, 675 equitable chattels real, 676 INDEX. 969 Married wonnMi's property — ciDdtniied. English law — ront'iniu-d. 1. Rights of liusbaml, etc. — contd. wife's freeliold, (177 discontiminnce, 677 rights of husband in wife's jiroperty after death, (578 estate by, curtes}-, 678 — ()82 husband's rights to wife's jiersonalty on her death, 683 II. Eights of wife in husband's property, ()83 dower, 684 gavelkind, 68.") borough, English, GS."* freebencli, (JS.l husband's seisin in law required for dower, 685 Dower Act, 1884. ..686 Dos de date, 688 no issue born necessary, 68i) eifect of attainder, 6'JO of adultery, 6i,)0 widow's Quarantine, ()02 wife's interest in husband's personal estate, 694 III. Power of wife over her own property, 694 acknowledgment of deeds, 694 IV. Antenuptial debts and acts of wife, 696 separate legal personality of spouses, 700 tenancy by entireties, 700 V. Wife's separate estate, 701 Married "Women's Propertj- Acts, 1870, 1874, 1882, 1893, 1907. ..701 rf .sfq. VI. Restraint on anticipation, 70.5 VII. Separate trading by wife, 710 VIII. Contracts of married women, 711 IX. Contracts between husband and wife, 714 X. Torts of wife during marriage, 717 XI. Pin-money, 718 ' XII. Paraphernalia, 718 civil law, as to, 719 XIII. Insurances by husband and wife, 721 dealings by one spouse with the other's property, 721 gifts infer cu?ij>/t/es, 722 XIV. Marriage settlements, T2S collatertil satisfaction in bar of dower, 723 jointure, binding effect of settlements, 724 marriage articles, 725 power of infants to settle propertj- on marriage, 726 antenuptial and post- nuptial settlements in fraud of creditors. 728 Married women's property — continued. J'juglish law — cnnfinued. XIV. Marriage settlements — con/d. purchasers and volunteers, 728 effect of bankruptcy. 729 Scots law, communion of goods, (i2.'> property of wliich it consisted, 625 Jxs mariti, jus relictw, bairn's part, ()26 effect of marriage on property oH wife, 627 jus mariti and paraphernal goods, 627 rpstitiix, mundus muliebris, 627 articles used indilfcrcntly by husband or wife, 627 lady's gown, (i28 exclusion of property from and renunciation otjus mariti, 628 liusband's right of administra- tion. 628 recent legislation as to jus mariti, 629 JIarried "Women's Property (Scotland) Act, 1877.. .630 Married "\Vonien's Property (Scotland) Act, 1881.-. .631 curtesy of Scotland, 632 conditions on whicli curtesy depends, 633 heritage — conquest, 633 property acquired by wife by singular title. 633 effect of nullities in wife's in- feftment, 634 honours and dignities, 634 burdens preferable to curtesy, 634 termination of curtesy, 635 terce. 635 burgage tenements, 639 conventional provision in bar of, 636 debts prevailing over, 637 exclusion of. 641 greater and lesser ferre, 638 heritable subjects to which feiue attaches, 636 husband's seisin a measure and security of, 636 exceptions, 637 nominal infeftmcnt. 637 widow of reverser dying before redemption of wadset, 638 reversion, no fercc of rights of, 639 servitudes, right of widow as regards, 638 service of widow to, 640 relates to time of husband's death, 641 transmission of, 641 waste bv tcn-rr, 641 970 INDEX. Married women's property — continued. Scots law — continued. judicial ratification of wife's acts on oath, 642 husband's liability for wife's del its, xtante matrimonio. 642, 644 on dissolution of marriage, 642 when husband is Iucrati/.-<. 643 rents of wife's property, 644 discharge in bankruptcy, 645 conveyances to husband and wife, 645 conjunct fees, 645 to strangers, 646 relaxation of rule as to jjer.'if/c, 502 purchase of- immovable by means of movables, 502 price of immovable propre sold during marriage, 503 fructus ndtiiruh'S, not gathered during the com- munity, 503 fructus ciriles, 504 rents of country estates, 504 houses in town.s, 505 estate purchased between contract of marriage and marriage, 505 the community en pitssif] 50(3 debts of which com- posed, 50() Married women's property — coutbtucd. French law, etc. — continued. Section I., etc. — continued. the community, etc. contd. debt must be movable, 507 debt of husband as surety, 507 warranty by husband against eviction, 5o7 debts contracted by wife, 508 immovable debts, 508 sums due in respect of rents, 509 succession of movables en actij, 509 proportion regulated by inventory, 510 other modes of proof. 510 saving of creditor's right of recourse, 510 liability for wife's ante- nuptial debts, 511 liability of husband after termination of community, 512 liability of wife after termination of com- munity, 512 renunciation of the com- munity, 5!:> the inventory, 514 position of hypothecarj' creditors, 515 administration of property in community, 515 powers of alienation, 5ir, movable and possessory actions, 51() testamentary disposi- tions and donations, 516 donations by husband, 517 interdiction of, 517 husband's " power of testamentary disposi- tion, 518 position of wife, 519 no power of ad- ministration ur alienation, 519 liow far liable for debts, 519 titles of honour, 519 rents or profits of separate property, 520 leases, 520 consent of wife neces- sary to disposition of sei>arate property by husband, 520 dissolution of community, how effected, 521 072 INDEA . Married women's property — continued. French law, etc. — continued. Section I., etc. — continued. dissolution, etc. — continued, st'paration de hiejis, 521 Separation de co?-2)>i in- volves, 522 judicial sentence necessary for, 522 position of husband's credi- tors, 522 position of wife's creditors, 522 revival of community after, 525 law of 13th July, 1907, as to earnings of married women, o'2'^ acceptance or renunciation of community, 525 acceptance, how signified, 526 to what period acceptance relates, 527 renunciation, 527 under the Coutumc de Pa 7- is, law of Quebec, 528 law of St. Lucia, 528 time for. on dissolution of community by death, 52S or by separation, 828 inventory, 529 several heirs, acceptance by some, renunciation by others, 529 relief against renunciation or acceptance, 5S0 retention by wife, on re- nunciation, of articles of apparel, 5I?0 provision for wife during interval for making in- ventory and deliberating, 530 conversion or concealment of property of com- munity, 51? I continuation of community, 5:51 Code Civil, 5:U law of Quebec, 531 St. Lucia, 532 liquidation and partition of com- munity, 532 partition of r 974 INDEX. Married women's property — continued. foreign law — eontinued. German law — continued. II. Contractual regime, 596 1. Form of contract, 597 2. Systems defined by Code, 597 (A) General community of goods, 598 formation of common fund, 598 rules as to separate property, 598 husband's powers of disposition, 598 wife's powers of dis- position, 599 rules as to receipt and disposal of income, 600 liability for debts, 600 between spouses and creditors, 600 between spouses inter se, 600 dissolution of com- munity, 601 continuance of com- munity, 60.S (B) Community of income and profits, 605 formation of common fund, 605 rules as to separate property, 605 management, 605 liabilities payable out of common fund, 605 dissolution, 605 no continuance of, after death of one spouse, 605 (C) Community of mov- ables, 606 Hungarian law, 609 dotalitiuni, 610 I talian law, marriage contract, form and capacity, 578 (1) dotal regime, 579 husband's powers as to dowry, 580 restitution of dowrj', 580 wife's privileged pro- perty, 580 (2) Community of goods between husband and wile, 581 limits of contractual freedom, 582 common fund, 582 dissolution of com- munity, 582 Jai>rtn, 758 Siam, 700 Spanish law, 583 JMarried women's property — contniKcd. foreign law — ronfinued. t>panish law — continued. donations ^;>v>/;i'p;" nvptiax. 584 dowry, 584 restitution of, 586 general dispositions, 583 paraphernal property, 586 ganancial propeity (com- munity of acquisition dur- ing marriage), 587 separation of property, 588 Swiss law, I. Existing legal systems, 610 1. Combination of pro- perty, 611 2. Unity of property, 012 3. Community of ac(iuisi- tions, 012 •\?, 4. Community of pro- perty, ordinary' rcg'ime, 613 5. Separation of property. 61.4 conventional variations. 615 II. Federal Code. 616 transitory provisions, 616 ordinary ?r(7//«£;, 017 extraordinary regime, 619 contractual rrr/imes, 619 community of property, 020 general community, 620 continued community, 621 community of income and profits, 622 separation of property, 622 United States, law of, 751 generally, 751 curtesy and dower, 754 wife's separate property, 75ii wife's contracts, 755 wife's torts, 755 contracts between spouses, 755 private international law, arrangement of subject, 761 clioice of governing laws, 7(!1 I. Where no marriage propert}- con- tract, 7()2 general ol)servations, present view, 702 — 767 (r/) where marriage regime in system of community, 767 doctrine of tacit contract, 707 early French decisions and jurists, 769 Burge's view, extraterritorial effect of connnunity, immovables, 772 movables. 774 modern decisions and jurists, 774 Continental law. 775 law of Q'.iebec, 775 English law, 775 law of United States, 77G IXDKX, 975 JIaiiicd wonion's ])roperty — cuniinurd. private international law — contlnurd. I. Where no mariiatre, etc. — ronfd. (>') change of doiuieil or pcrtional law, 777 older jurists, 777 French decisiou?, 779 law of Louisiana, 780 Burgc's opinion, 7S1 modern opinion. 7S2 Continental view, 782 law of Quebec, 783 law of England and Scotland, . 783 Ldxhleij V. /A'//, 783 De JVicoJs V. Curlier (I). 78.^> De McoU V. Curlier (2), 786 effect of decisions on English matrimonial domicil, 78G Scots law, 788 effect of recent statutes. 788 law of United States, 789 Q-) where matrimonial riginie is not system of communitj^, 790 older jurists favoured lex slttcs for immovables ; le-c domicilii for mov- able?, 790 Surge's opinion, 792 modern opinion, 793 {(/) capacity of spouses to deal with property, 794 older jurists favoured personal law, 794 lex situ.? governs dispositions of immovables, 795 Burge's conclusion, 79.5 mutual rights of sjiouses as regards immovables, Burge's conclusion, 790 (c) ante-nuptial debts, 796 Burge's view, 796 modern oj)iuion, 798 (/) debts and fharges on im- movables, 798 Burge's view, 798 (<7) dispositions of immovables to spouses, 798 Burires view, 798 effect of, 798 meaning, 799 II. Marriage contracts, 799 modern opinion, III. Dountious i /iter eo/tjuffcs, 803 Burge's view, 803 niodein view, 803 IV. Separation of property, juris- diction, 805 Roman law, 380 ct seq. lioman - Dutch law, Dutch Republic, and British Colonies, 391 Jlarrii'd women's property — cuntiniird. lirivate intornalional law — con/iiiufd. Section I. Statutory. 7'i7/(we of connnunity, 391 different in various pro- vinces, 393 community not a pprlncr- shii), 39.5 I. Comniencement of com- mwnily, 396 IT. Coniinuuio hoiioruni, 399 assets, 399 liabilities, 400 ante-nuptial debts, 401 post-nuptial, 403 III. Communio f/uo^stuvm, 4o7 assets, 407 liabilities, 41() exclusions, natural increases, -I(i9 ante-nuptial title, -If 19 successions, 415 donations, 415 Colonies: South Africa, 419 Natal, 419 Ceylon, 420 British Guiana, 422 IV. Termination of community, by divorce, 423 by death, -124 Colonies : South Africa. 124 Ceylon, 425 British Guiana, 425 Y, Continuance of community (^BoedelJwudersclia])), general law, effect of, 426 parties to. 427 by law, 429 inventory, 430 by act of parties, 431 inventory, 432 statutes of Batavia. 433 penalties, 434 Law of ('clonics : South Africa, 4.^5 Cape Colony, 436 by law, 437 by act of parties. 433 South Africa, Ceylon, and British Guiana. 438, 439 continued community on second marriage of surviving parent, 439 general law, Itinderhetcyx, Colonics: South Africa, Ceylon, and British Guiana, 441 YI. Division of common pro- l)erty, 442 general law, 442 Colonies : South Africa, Ceylon, and British Guiana, 442 97G ixdp:x. Married women's pfo|)erty — continHed. private interiuitional law — conthiued. Section II. Contractual regime, 443 A. Limitation of marital power before marriage, ante-nuptial contract, 443 historical development, 443 I. requirements, form. 44.") time, 44(5 parties, 446 II. contents, 447 stipulations allowed. 447 exclusion of community', 448 (c/) for wife's adminis- tration of her pro- perty, 450 (J)') for return of wife's property after lius- banil's administra- tion. 452 remedy of wife, 452 (r) where community excluded and marital power left unlimited, 453 (jl) donations, 457 viorgentjare, 454 duifaiien, 454 settle iieuts, 455 gifts by third par- ties, 456 stipulations as to succession to tliird parties, 45(J succession to spouses, 457 dispositions as be- tween husband and wife, 457 'lispositions re- garding children 459 choice of intestate succession, 450 or special law might be selected to govern property, 460 III. revocation of ante-nuptial contracts, 4()1 IV. interpretation of antc-iuip- tial contracts, 462 B. Limitation of marital power (hiring marriage, scpanitio haiioniiu, 463 curati'hi, of husband, 164 C. Limitation of marital power after dissolution of marriage, 465 renunciation of com- munilv, 465 Married women's property — conthiurd . private international law — continued. Section II. Contractual ref/iiiic — ■ continued. D. Colonies : ante-nuptial contracts : (1) formalities and re- quirements, South Africa. 466 Cape Colony, 466 Transvaal, 468 Natal, 469 Orange Free Statc,469 Ceylon, 470 British Guiana, 470 (2) contents, South Africa, 470 settlements, 473 Ceylon and British Guiana, 474 (3) seiiaratio bonovum. South Africa, 474 Ccj'lon, Britisli Guiana, 474 (4) renunciation of com- munity, South Africa, Ceylon, British Guiana, 475 Matrimonial domicil, in relation to tlie property of the spouses. See Domicil. Mauritius, law of, athnity and consanguinity, 119 age, marriageable, 9.S celebration of marriage, 213 consent of parents, 108 divorce and judicial separation, 890 married women's property. 479, 549, 563. And -see French Law. personal capacity and status, 300 And .see French Law. summary jurisdiction for protection of married women, 891 Mental incapacity. See INSANITY. Mexico, law of, ileceased wife's sister, marriage with, 260 judicial separation, 840 Minority, as a bar to marriage. See JIakriage, Capacity kor. of husband and wife, effect on per- sonal capacity and status of spouses, French law, 308 — 316 German law, 597 Hindu law, 3.52 Italian law, 321 Japan, 357 ]\Iuliammadau law, 355 (tuebec. 3 Hi lloman-Uutcli law, 279-284 St. Lucia, 316 Siam, 358 Spanish law, 322, 585 Miscogenous marriage, 142 INDEX. 977 Jlixed marriage, Canon law binder decree of Council of Trent, 28, 2'<;»' Soirrn Ahmuca. Negri Semhilan. iSf<^ Federated Malay States. Nevis. (S"f aUo Leeward Islands, West Indies. celebration of marriage, 208 consent of parents, 132 dower, 748 slaves formerly as property, 747 New Brunswick. Sec alxo Canada. affinity and consanguinity, 139 celebration of marriage. 198 consent of parents, 129 curtesy, 736 deceased wife's sister, marriage with, 139, 260 divorce and judicial separation, 880 dower, 737 barring dower, 739 married women's property, 736, 744 Newfoundland. See rilxo Canada. affinity and consanguinity, 139 celebration of marriage, 201 consent of parents, 129 curtesy, 733 deceased wife's sister, marriage with, 138, 260 divorce and judicial separation, 881 dower, 738 married woman's property, 745 summary jurisdiction for protection of married women, 745 New South Wales. See also Australasia : Australia. acknowledgment of deeds, 347 affinity and consanguinity, 138, 203 celebration of marriage, 203 consent of parents, 130 deceased wife's sister, marriage with, 137, 138 divorce and judicial separation, 881, 884 dower, 745 married women's property, 745 personal capacity and status, 347 summary jurisdiction for protection of married women, 745 New Zealand, acknowledgment of deeds, 349 affinity and consanguinity, 138 celebration of marriage, 204 consent of parents, 131 deceased wife's sister, marriage with, 137 divorce and judicial separation, 886 dower, 349 married women's property, 746 jjcrsonal cap.acity and status. 349 summary jurisdiction for protection of married women, 746, 886 Niece and uncle, marriage between. See Uncle and Niece. Xixfiii, 50 Nonage, as impediment to marriage. See Marriage, Capacity for : Age. 62 978 INDEX. Nonconformist marriage, British, 94, 183. And .see Jews; QOAKERS. Russian, (i2 North Borneo, consent of parents to marriage, 131 Nortli-Easrern Rhodesia, consent of parents to marriage, 132. n. Northern Nigeria. See also West Africa. attinity and consanguinity, 133 celebration of marriage, 213 consent of parents, 132 divorce and judicial separation, 892 North- West Territories. See also Canada. celebration of marriage, 200 consent of parents, 129 curtesy, 733 deceased wife's sister, marriage witli, 139 divorce, 881 dower, no, 738 married women's property, 7-1") Norway, Church of, relation to Church of England. 3(5 divorce, 85.5. And see Divorce and Judicial Separation : Norway. marriage, 3") Nova Scotia. See also Canada. affinity and consanguinity, 139 celebration of marriage, 197 consent of parents, 129 curtesy", 735 deceased wife's sister, marriage witli, 139, 2G0 divorce, 879 dower, 737 in mortgaged property, 738 barring dower, 739 election of, 740 married women's property, 735, 743 summary jurisdiction for protection of married women, 744 Nullity of marriage, 219 Austri;i,229 Canon law, 25, .30 law of Protestant Church, 34 void and voidable marriages, 219 English law, 219 ^Z seq. procedure, 223 foreign law, 225 Frencli law, 22() old law, 22(; Code Civil, 227 German civil code, 229 grounds for, under foreign law, 22ii Hungary, 229 impedimenta dirimentia and i)ro- hiltilira, distinction between 19, 219 Italy, 231 Roman-Dutcli law, 238 Russia, 233 Scots law, 22(t S()anish law, 232 Swiss law, 233 Nullity of marriage — coiitinued. United States, law of, 220 suits for nullity, when, and by whom competent. 48, 49, 127, 224 suits to affirm marriages, 225 effects of annulment, English law, effect of decree, 223 French law, 235 (1) as regards spouses and children parties to, or re[n'esented in, pro- ceedings, 235 (2) as regards third parties or persons not so represented, 235 how far ilecree is cltose 'juijie, 235 putative marriages, 235 German law, 23(i Italian law, 236 Spanish law. 236 Swiss law, 237 United States, law of, custody of children, 225 effect of judgment as to validity of marriage, 224 United States, law of, 225 official position, as impediment to marriage, Canon law of Eastern Church, axiomatic marriage, 60 guardianship, 89 China, 71 (lermanv. 123 Russia, i23 Ontario. See also Canada. affinity and consanguinity, 139 celebration of marriage, 196 consent of parents, 129 curtesy, 735 deceased wife's sister, marriage with, 139, 260 divorce and judicial separation, 879 dower, 737 barring, 739 in mortgaged property, 738 election, 740 man ied women's projierty, 734, 741 nullity of marriage, 879 summary jurisdiciion for protection of married women, 742 Oppositions (to marriage), 162. Sec also :\Iai{uiagk, Capacity vor. Belgiuiti. 164 Canon law, 25 French law, 162. IiM n. Italian law, 167 Swiss law, 173 Orange Free Slate. .SVr South .Vi RICA. Ordinary marriage licence, 181 INDHX. '79 Ptidd dotuVui, 3S0 I'ahang. See Fi:ni:i!ATi;n ]\rAr.AY States. Pam-haiict, (1 7 I'apua, celebration of mania jj;e. 2(i:; personal capainlv of luarrieil pcisoiis, 348 &v' Australasia : Australia ; Queensland. Taraphernalia. China, 7.")S English law, 718^'^ ,^7'g. French law, 580 Germany, 825 Quebec, 580 Scots law, 627 Farapliernal propcrtj^ b ranee. 5.").'") Italy, 57S) Malta, 57i)— 588 Roman law, 388 Scots law, ()27, co-l Spain, 586 Parents. See Custody of Children. usufruct of children's property, consent of, to marriage. See Marriage, Capacity for : Consent of Third Parties. Parsee divorces, ^^ Parsee marriages, 146 age, marriageable, 146 consanguinity and affinity, 146 Partition, of community, French law, 582 Quebec law, 533 St. Ijucia, law of, 532 of doud'ire, Quebec and St. Lucia, 542, 543 Patcrnitas. 22 Perak. See Federated Malay States. Persona dignior, rule of, 647 Personal law. See Domicil. Personal capacity of spouses, private international law, 359 (1) Personal law, not le.v loci cele- hratumis, governs rights, between spouses. 359, 8()6 law of wife's doniicil not followed, 360 husband's personal law governs, 8()1 ignorance of wife of law of hus- band's (lomicil immaterial, 8()1 on change of parties' domicil, law of new domicil governs, 3()2 or personal law, 366 (2) Wife's rights not prejudiced by change of personal law. 867 in United States wife can have separate domicil, 368 effect of law of country where parties reside or are present, 369 capacity for donations intn- conjitgeK, 870 Personal capacity of s\)ouiics~ eon/ / /n/ed . private international law — runtlniied. (."i) Capacity of wife towards third parties, 871 formerly wife's personal law governetl, 871 now personal law generally governs, but Icj' loci coii- tractnn sometimes alterna- tive, 374 foreign view, 374 United States, 875 personal law, requirements, authorisation of Court, 37(i limitation of form, 377 suretyship, 877 limitation by lejr loci con- tvdctus gives way to, 878 on change of wife's domicil law of new domicil governs, 378 Pin-money, 718 Polygamy, 257 in Burmah, 68 Mormons, 258 Portugal, law of, agreements in derogation of conjugal " rights, 321 deceased wife's sister, marriage with 260 judicial separation, 840 suretyship of married women, 323 PoHsension d'etat, 162 Post-nuptial settlements. See. Settle- ments, Marriage. Potcdas viarilali.s, 338 Prcpjyoaitnra, wife's, 342 Precipvt, St. Lucia, 532, 584 clause of, France, 569 Quebec, 569 St. Lucia, 569 Pre-contract of marriage. Canon law, 17, 18 not recocnised as impediment in En'glish law, 220 nor enforceable in English law, 44 Iioman-Dutch law, 11 — 18 Ceylon, 210 See Betrothal. Prt'lerevients, 538, 534 Presbyterian marriages in Ireland, 187 Priest, whether intervention of, essential to validity- of marriage, Canadian decisions, 1 78, 1 79 Canon law, 18, 27—29 Eastern Canon law. 5/', 147 English law, 148, 177 Germany, old law, 86 India, 214 United States, law of, 49. 21 7 Prince Edward Island. See also Canada. affinity and consanguinity. 189 celebration of marriage, 198 consent of parents, 129 980 INDEX. Prince Edward Island — continued. curtesy, 786 deceased wife's sister, marriage with, 139 divorce, 880 dower, 737 barring dower, 739 married women's property, 786, 745 personal capacity and status, 741 Prior marriage, existing, absolute pro- hibition to marriage. See Bigamy. Private international jaw, constitution of marriage, 240 divorce and judicial separation, 905. And iiei'\)\\0\iCY. : PRIVATK INTER- NATIONAL Law. immovatxC property. See Married Women's Property : Private International Lavt. married women's propertj^ 761. And «?« Married Women's Property: Private International Law. movable property. See Married "WoMKNS Property: Private International Law. personal capacity and status, 359. And see under Husband and Wife: Private International Law. Prifilet/ia, ex-territorial effect, British P»oyal Marriage Act, 2.51, 254 generally, 251 suretyship of women and married women, 2S6 exceptions, 287, 288 Justinian's legislation, 287 modification of Koman law, 288 renunciation of privilege, 289 form, 289 Koman law, {)rivilege when pleadable, 286 Roman-Dutch law, 288 Prohibited degrees, 259 ex-territorial recognition of, 261 Promise of marriage, 156 breach of, Austria, 157 Belgium, 1 56 Canon law, 17 r/ ser/. Colonics, 176 P^nglish and Scots law, 174 French law, 156 Gcrmaa law, 157 Hungary, 157 Italian and Spanish law, 157 S\\ iss law, 1 57 United States, law of, 176 jiiihlica /iiinent/ix, im|iedimcnt to marriage, 6, 26, 33 snhseqvente cojiuhi, Canon law, 18 Scots law, 191, l;i2 Proprex, generally, 495 et acq. Prop res — con t inued . jxirfaltfief itnparfiiits, 567, 568. And see Married Women's Property: French Law. Protection orders. See Summary Juris- diction. Protestant Canon law, marriage law. 32 marriages in Prance. 158 Provision for wife in Scots law, 649 conventional in bar of terce, 636 et seq. Publications, of intended marriages, requirement of, ex-territoiial effect of. 267 effect of omission of, iu France, 161 England, 221, 267 Hague Convention, 265 Putative marriage, Canon law, 20 Code Civil, 113, 114 French law, effect of, under, 235 Germanv, 236 Italy, 2.36 origin of, 112 Roman- Dutch law, 83 Spain, 236, 239 Switzerland, 237 unknown to English and Irish law, 113 Quakers, marriage of in Canada, 196 et f^eq. in England, 52, 183 in Ireland, 52, 187 generally, 52 et seq. formalities, 53 Quarantine (widows'), 692 Quebec, Law of, affinity and consanguinity, 118 age, marriageable, 98 celebration of marriage, 201 consent of third parties to marriage, 108 deceased wife's sister, marriage with, 139 divorce, 881 domicil, effect of change of, on pro- prietary rights of s|)()uses, 783 donations inter rdnjiit/es, 557, 558 inter viroa, 500 community of property, 482 et xeq. dissolution of, 521 continuatiim of, 531 marriage contracts, 5()1. 562 dotiiiire. system, 535 et seq. testamentary disposition of, 516 married women's jjropcrty, 479, 733. See .Maukied Women's Property: FiiKNCH Law. ])crsonal capacity of spouses, 300 et xeq. Queensland. See aho Austhalasia AliSTUALIA. acknowledgment of deeds, 318 INDEX. 981 Queensland — continued. affinity anil consanguinity, 13S celebration of marriage, 203 consent of parents to minor's mar- riage, 131 divorce and judicial separation, S84 dower. 74-') married women's property, 745 et srq. personal capacity and status of spouses, ;}4S summary jurisdiction for protection of married women. 745 liapport, 532 liapport Jiatif, 532, n. Rati Heat ion of (huutt'uuirx inter ('dnjni/t'.i, Scots law, 653 of authorisation of wife, French law, 310 Quebec, 311 of minor wives' acts, Siamese law, 358 Ravishment and abduction as impediment to marriage. See Marriaok, Capacity FOR : Ravishment and Abduction. Healixdtion, Conrcntion df, 567 Recompense, 532 to community, 533 French law, 533 Quebec, 533 li^gimr, Dotal. See DoTAL liiGIME. Registrar's certificate, marriage by, 183 Regular marriages, Scots law, 189 Registration of intended marriages. See Mar- kiage. Indian numigrants, Jamaica, 205 of marriage contracted abroad, effect of omission of, 267 in France, 161 Relative prohibitions to marriage. See Marriage, Capacit-y for : Affinity and Consanguinity. Religion, difference of. as impediment to mar- riage, Austria, 121 British Guiana, 06 Buddhist law, Ci) Canon law, 20 Ceylon, 96 Private international law, 269 Protestant Church, 32 Roman- Dutch law, 88 South Africa, 96 Spain, 121 vows of chastity and religion. See Vows. Religious marriage. And xee Priest. in Germany, 37, 225 Religious marriage — eontinved. in Spain, 31, 169 Jewish, 50 Friends, Society of, 53 Greece, 147, 266 Russia, 62, 1 74 Servia, 147. 260, 266 generally, 266 in Nova Scotia, 195 Quebec, 202 Malta and Gozo, 209 Servia, 2i")6 Re-marriage of divorces. See DivORCf;^, Re-marria(je of. Remphii^ 532 lletites coH-stituees a pri.v d'anjent, 488 Renter viageres, 488 Ileprixe, 532 Be.^ judicata, decree of divorce or judicial separa- tion, is. 837 Restitution of conjugal rights. See CON- JUGAL, Rights. Restraint on anticipation, 705 et .^eq. Return, clause of, in marriage contract, 660 Reversibility, clause of, 489 Roman law, affinity, 5 age, marriageable, 7 betrotlial, 9 celebration of marriage, 7 concubinage, 9 consent to marriage, of parties, 7 third parties, 7 contracts between spouses, 389 cuntuhcrniuni, 9 CO nu hi inn, 4 divorce, 8(»6 dunationes infer conjuges, 389 antenuptial^ and propter nvptiax, 387 guardianship, as impediment to mar- riage, 6 impediments to marriage, 4-7 married women's property, 381 et seq. dos profectitia and adrentitia, 386 paraphernalia, 388 personal capacity and status, 276 Senatus Consultum Yelleianuni, 277 Roman Catholic Church, Canon law of, 15 et acq., 27, 30 marriage, 27 et xeq. in different countries, 30, 218 of Catholics France, 158 Ireland, 187, 188 canonical mar-iage, in Spain, 168 India, 215 Malta, 209 Quebec, 201 divorce and judicial separation in, 808, 813. 820 Cniate Eastern Churches, relation to, 64 982 INDEX. Koman- Dutch law, adultery as impe limcnt to marriage, 8!). M affinity and consanguinity, 86, 95 age, marriageable, 76, 91 a/iHi/.s luctux, 84 bigamy, 81, 9i hoedelhoiiderxclKip, 423 celebration of marriage, 148 colonies. See British Guiana ; Cey- lon ; South Africa. community of property, ciiiiujnniio honiirum, 896 (juu'stinaii, 407 consent to marriage, of parties, 77, 91 of third parties, 78, 92, 94 contractual ri'ijiine of property, 443 deceased wife's sister, marriage with, 87 disease, infectious, as impediment to marriage, 90 divorce and separation, 812, 815 dtfiirrt'n, re-marriage of, 823 guardianship as impediment to mar- riage, 90, 97 impotence as an impediment to mar- riage, 8."), 95 hlndcrheicjiit, 437 mari'iage originally form of guardian- ship, 10 betrothal by guardian, 11 wife, 13 married women's propert}^, 391 et scq. nullity of marriage, 238 Ijersonal capacity and status, 279 husband, 279, 291, 293 wife, 280, 295, 298 putative marriage, 83 ravishment and abduction as impedi- ment to marriage, 89, 97 religion, differences of, as impediment to marriage, 88, 96 xpoHxdJ'ia, 148, 152 statutory raj'nne., 391 suretyship of married woman, 286, 296 Roumania, Law of, deceased wife's sister, marriage with, 260 juilicial separation, 841 uncle and niece. 261 Royal marriages, 251 British Royal Marriage Act, 254 Italy, 99 Russia, Law of, age, marriageable, 56, 100 Canon law, 54 eA xrq., 61 celebration of marriage, 174 consent of third parties to marriage, 112 deceased wife's sistci', marriage witli 260 divorce and judicial scfiaration, 81(i Orthoilox Cluuch, 840 Lutheran, 81 1 JIuhamniadans, 841 Poland, 841 Russia, Law of — continued . divorce, etc. — confinned. Russian Jews, 841 nullity of marriage, 233 Russian Cliurch. See EASTERN Church. St. Christopher (St. Kitts) and Leeward Islands. See West Indies. celebration of marriage, 208 consent of parents to minors' mar- riage, 132 St. Helena, Law of, celebration of marriage, 209 divorce, 888 St. Lucia, Law of, aflinity and consanguinity, 119 age, marriageable, 98 celebration of marriage, 207 community of property, 479 continuation of, 532 dissolution of, 522 consent of third parties to marriage, 108 continuance of community. See French Law. divorce, 887 dinuttrc, 535 don/itionrx infer conju/jea, 561. See Married Women's Property : French Law. married women's property, 479. And see Married Women's Property: Frknch Law. matrimonial contracts, 571 personal capacity and status of spouses, 300, 307, 313, 316, 319 St. Vincent. See aim) West Indies, Windward Islands. affinity and consanguinity, 138 celebration of marriage, 208 consent of parents, 132 divorce and judicial separation, 887 dower, 748 married women's property, 749 slaves as property formerly, 747 Saskatchewan. See Canada. Korth- West Territories. Scots law, adherence, action of, 8(51 affinity and consanguinity. 138 agreement in derogation nf coniutral rights, 344 bigamy. l.'U CaiMin law. in, I 1 celebration (if marriage, 189 clandestine marriage, 190 riinnniniio honoriim, 625 consent of parent or guardian to marriage, 127 deceased wife's sister, marriage with, 137 divorce and judicial sc])aration, 856. And xee DiVOKCi'; AND JUDICIAL Separation : Scots Law. INDEX. 983 Scots law — continued. (lomicil, effect of chansze of, on pro- prietary rights of s|ioiises, 78;J (lomtionex 'niter conjiKjex, 018 forms of marriage. 18!) habite and repute, 11)2 husbancrs curatorial power. 3:?8 lev loci celchratioui.s and lex loci contractu.1 govern constituti55 et se.q. South Africa, 473 Swiss law. 615, 617, 619 Sifices, Argentine, 840 Austria, 839 Belirium. 837 Brazil. 840 Chili, 840 French law, 831 Italy, 840 Malta, 889 Portugal, 840 Roumania, 842 984 INDEX. Se vices — continued. Servia, 842 Seychelles, law of, affinity and consanguinity, 110 age, marriageable, 1)8 celebration of marriage, 213 consent of parents to minor's mar- riage, 109 divorce and judicial separation, 891 married women's property, 479 personal capacity and status, 300 Shia law, 66 Siara, Law of, affinity and consanguinity, 75 age for marriage, 74 celebration of marriage, 75 community of goods, 760 consent of parties to marriage, 74 of third persons, 74 contracts of married women, 358 divorce, 903 married women's property, 760 personal capacity and status of hus- and wife, 358 promise of marriage, 75 sinderin, 760 ainsoiiirot, 760 torts of married woman, 358 Sierra Leone. See aho West Africa. acknowledgment of deeds, 850 affinity and consanguinity, 138 celebration of marriage, 213 consent of parents to, 131 divorce and judicial S2])aration, 891 mari'iages, (Christian, 213 Muhammadan, 213 married women's property, 751 personal capacity and status, 350 Slaves as property in West Indies, for- merly, 746, 747 Slave marriages, in United States, for- merly, 142 Society of Friends. See Quakers. Soldiers and functionaries, marriage of, in Germanv without special authorisa- tion, 123 in Russia, 123 Somaliland, celebration of marriage, 214 consent of parents, 132, n. South Africa, affinity and consanguinity, 95 age, mariiageable, 91 aitniix Ivctiix. 91 bigamy, 91 celebration of marriage. 155 community of property, 419 continuation of, 433 et xeq. dissolution of, 424 in case of second marriage, 441 kiiif/erheiri/s, 441 consent to mariiage, of jiarties, 91 of tliird parties, 92 divorce, .S25 gnardianslii|) as impediment to mar- riage, 97 South Africa — cuntimied. impotence as impediment to mar- riage, 95 judicial separation, 817 limitation of husband's marital power, 298 marriage contracts, 466 et seq., 470 settlements, 473 ravishment and abduction as impedi- inent to marriage, 97 religion, difference of, as impediment to marriage, 96 suretyship of married woman, 296, 298 South Australia. See also Australasia : Australia. acknowledgment of deeds. 348 affinity and consanguinity, 138 celebration of marriage, 203 consent of parents to, 131 deceased wife's sister, marriage with, 138 divorce and judicial separation, 884 married women's property, 746 personal capacity and status, 348 summary jurisdiction for protection of married women, 746, 884 Southern Nigeria. See alio West Africa. affinity and consanguinity, 138 celebration of marriage, 213 consent of parents to, 132 divorce and judicial separation, 892 Spanish law, adulterer and adulteress, marriage, 121 affinity ami consanguinity, 117, 118 age, marriageable, 99, 100 agreements in derogation of conjugal rights, 321 a nuns Inctus, 114 bigamy, 112 celebration of marriage, 157 consent to marriage, of parties, 103 of third parties. 109 divorce and judicial separation, 839 dowry, 584 impediment to marriage, guai'dianship, 122 holy orders, 122 homicide of spouse, 122 impotence. 1 16 marriage, canonical, 168 civil, 170 putative, 113 married women's [iroperty, 583 nullity of niai-riage, 232 on ground of age, 99 paraphernal property, 586 personal capacity and status of spouses, 322. 325 promise of mari'iage. 157 religion, difference of, impediment to mai'iiiige, 121 scjiaration of property, 5SS suretyship of marridi women, 323 Trinidad, formerly in force in, 749 INDEX. 985 Special licence, 1S2 Sjtes surcrxsi(i)ii.i, Scots law, of children under marriage contracts, of substitutes called after heirs of niarringc, (!■")() Spiritual position, as impediment to marriage. Austria, 128 China, 71 France, 123 Spain, 122 Spotwdhi. And si-e Betrothals. Canon law, 17, 18 Roman law, It, 14 Roman- Dutch law, 148 Straits Settlements, acknowledgment of deeds, .S49 celebration of marriage, 210 consent of parents to, 181 divorce and judicial separation, 889 married women's property, law of, in, personal capacity and status, 349 Stridhan, 756 Substitution, clause of, in marriage con- tract. 660 Summary jurisdiction for protection of married women, 885, 886 Australasia, 881 Australia; 746, 886 British Honduras, 887 Canada, 740 et spq. English law, 875, 889 Falkland Islands, 888 Gibraltar, 889 Hons Kong. 889 Man, Isle of, 878 Mauritius, 891 Seychelles, 891 St. Lucia, 888 West Indies, 886, 887 Superintendent registrar's licence, 182 Suretyship, position of married woman as regards, Belgian law, 808 British Guiana. 299 Cape Colony, 297 Ceylon, 299 England and Scotland, 826 ct scq. French law, 803 Italian law, 823 Portuguese law, 328 Roman law, 286 Roman- Dutch law, 288 South Africa, 296 Spanish law, 323 Swiss law, 823 United States, 351 jirivate international law as to, 377 Sweden. Law of, celebration of marriage, 35 deceased wife's sister, marriage with, 260 divorce, 858 And Kce Divorce and Judicial Separation : Swedex. Swiss law, aliinity and consanguinity, 120 age. marriageable, 100 agreements in iAL REDUCED PRICES. ir*^. — ^. ^, ^, J ... Nos. J, 2, 3, 5 InsiEdmentPrice.' Cash Price. 3 3 3 14 14 14 16 16 16 THE ENGLISH DIGEST deals with about 300,009 cases. TIHI^'^DECENNIAL DIGEST contains the pith of about 9,000 cases.'' It is the cheapest, most accurate anJ best arranged ten years' Digest, and is the only one that can be used ^satisfactorily with the English Digest. '"••-* The Cases in the ANNUAL DIGEST are in nost instances digested by ThQ,-aoSiIrf iiepoft^fj and are therefore accurate summaries. Cases in all the series of Y^ports are digested. 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