HC Deb 15 April 1874 vol 218 cc607-14

Order for Second Reading read.


, in moving that the Bill be now read a second time, said, its object lay within a very narrow compass. In 1870, a Bill was passed in that House called the Married Women's Property Bill. The 3rd clause of the Bill enacted that every woman who married after the Act came into operation should during her coverture retain all her personal property, whether possessed by her before marriage, or acquired after marriage, free from the debts or control of her husband. The 6th clause enacted that the husband should not be liable for debts contracted by the wife before marriage; but that the wife might be sued, and any property that she had to her separate use might be taken in satisfaction of the debt. The Bill went to the House of Lords with those two clauses in it, but when it returned to the House of Commons, one of the clauses was struck out, and, as the Bill passed, the wife lost her property, but the husband was relieved from the liability to pay the debts of the wife before marriage. He believed he was correctly representing the present state of the law when he said that there were thousands of unmarried women now carrying on trade who might purchase on credit goods in which they were dealing, and the following week might marry and snap their lingers at their creditors, who would have no remedy against either the husband or the wife. He had that day presented a Petition from a large number of bankers and traders, praying that the remedy which this Bill sought to se-cure might be granted. He might mention one case as illustrating the hardships inflicted on creditors by the present state of the law. A lady purchased a piano of a manufacturer, agreeing to pay for it in eight quarterly payments. She made good three or four of these pay- ments, and then married, and the property in the piano passed to the husband, and he refused to pay the instalments due by the wife. She, by her marriage, was free from the debt, and the husband was not liable either. Another case was brought before Lord Cairns. A lady had lent £100 to a female friend. She married, and almost immediately afterwards repudiated the debt. The husband denied any liability, and there was no remedy. Lord Cairns said that was a very anomalous state of the law. When the Bill was before the House of Lords, Lord Cairns, who had charge of it, said the main principle of the measure was that whenever money or property had been acquired by an unmarried woman by her own industry it should be secured to her separate use, just as if it were actually settled upon her; and Lord Westbury said he was quite content with regard to the principle. He (Mr. Morley) was quite unable to account for the fact that the right hon. and learned Member for Southampton (Mr. Russell Gurney), who had charge of the Bill in this House, did not take exception to this change in its provisions. He believed there was great anxiety on the subject in trading circles, as spinsters or widows who kept shops might incur debts for goods, and in case of their marriage the trader who sold them the goods had no remedy. If that were not the true state of the law, he should be very glad to be corrected; but if it were, he hoped the House would give its sanction to a measure proposing to remedy such an injustice. The Bill as drawn was retrospective, but that had not been intended, and he should be quite ready in Committee to amend the Bill in that respect, as he wished simply to deal with cases in which the parties married after the passing of the Bill.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Morley.)


, in supporting the Bill, said, he had always been an opponent of the Act of 1870, but that having become law, he thought the Bill of the hon. Member for Bristol (Mr. Morley) was a necessary adjunct. Up to 1870 the effect of marriage on the personal property of the wife was to vest it in her husband, who was liable to pay the debts of his wife; but when the Bill of 1870 was under consideration, it was thought right that if the husband was not as there to fore to take the property of the wife, he should not be liable for her debts. The Bill now before the House proposed to modify this state of the law, and to enact that the husband should not be released from his wife's ante-nuptial obligations, if he took property with her, but should be liable to the extent of the property which he took. In his opinion, however, the Bill should go farther, and prevent the husband's indefinite liability for his wife's antenuptial torts; and, with that addition, he thought it would he a useful measure.


, in moving as an Amendment, "That the Bill be read a second time that day six months," said, the Act of 1870 was the result of several years' consideration, both in that and the other House of Parliament. He objected to the Bill under notice as being likely to re-introduce a former state of things, with regard to which very strong expressions had been used by the advocates of the Act of 1870 with reference to the position of married women in relation to property. It was said that marriage was equivalent to the forfeiture of their property; but that did not fairly represent the state of the law on the subject. It would be more correct to say that the right of property was suspended during the continuance of the marriage. It was necessary that this distinction should be borne in mind in dealing with this question. And so with regard to the liabilities of the wife. If an action were brought after marriage in respect of liabilities incurred by the wife before marriage; if judgment were obtained during the continuance of the marriage, the husband, as representing both, was held to be responsible, and the liability was limited to the continuance of the marriage. This Bill would introduce a novel principle with regard to the relation of husband and wife; every woman would be treated on her marriage as dead in law, and as if her husband were her executor; just as women entering religious houses had been held to be dead and the heads of those houses had sued their own executors, sometimes bringing and maintaining actions against the relatives for their property. That state of things would be most objectionable, for it held the husband liable at any distance of time for what he had received; and while a woman might be allowed to make a present of a thousand pounds or more to a godchild, or a favourite servant, or a cousin, she would not be allowed to give a £10 note to her husband without his being called to account for it. As regarded the working of the Bill, the husband might be held liable, and even his executors, at a distance of 20 or 30 years, for every penny he received at the time of his marriage, and for every article of furniture, under the penalty of completely satisfying the liability charged against him. The onus ought to be thrown upon the creditor to prove that the husband had received from the wife property that was answerable for the liability. In the first section of the Bill the word "entitled" was used, and in the second the word used was "received." By the 1st section the husband was made liable for any property he was entitled to receive on the wife's account, so that the 1st section made him responsible not only for what he had received, but also for what he might have received but had not received. On the other hand, the 2nd section provided a remedy only for what the husband had received. He objected, also, to the provision in the 2nd section which said that the Judge should make such an order as he might think just. It was important that some general principle should be laid down for the guidance of the Judges both of the Superior and Inferior Courts, and especially of the latter, seeing that, although the amounts might be comparatively small, yet that the Bill affected the interests of a great number of persons. It was remarkable that the Act of 1870 did not extend to Scotland, and if this Bill passed in its present shape there would be three different laws for the different parts of the Kingdom. England was under the operation of the Act of 1870, and would come under the operation of the present Bill. Ireland was under the operation of the Act of 1870, but was excluded from the present Bill; while Scotland would come under the operation of the present Bill, but was not under the Act of 1870. This discrepancy might, no doubt, be remedied in Committee. The hon. Member for Bristol (Mr. Morley) had relied upon the case of the traders, and their case no doubt might be distinguished from others, but the class of female traders was very small. The last Census gave the total number of females in England and Wales as 11,653,332, but of these only 57,237 were engaged in trade. The number, however, was sufficiently important to justify some provision to moot the case of women who were traders at the time of their marriage. He would recommend that that case should be met by an amplification of the 1st section of the Act of 1870, which secured to a married woman her earnings in trade, &c. He would suggest that the stock-in-trade, the book debts due and growing due, the assets, and the goodwill of the business of a woman who entered into the married state should belong to her for her separate use in the absence of an agreement to the contrary made at the time of her marriage The separate property would then become subject to any judgment on any contract made by her previous to her marriage. If any allegation of fraud were set up and established, the Courts would have power to meet such a case. The Bill, moreover, was objectionable as an instance of piecemeal legislation, and if Parliament undertook to alter the Act of 1870, it should be done by some complete and fully-considered measure. Seeing that the Bill only dealt with a fragment of the question, and that it failed to lay down any distinct principle on which the Courts should proceed, he had no hesitation in moving its rejection.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Alfred Marten.)


said, that if he saw any chance of comprehensive legislation on this subject during the present Session, he would willingly wait. A comprehensive measure was brought in last year, was supported by considerable majorities, and would have passed the House of Commons but for the half past 12 o'clock rule. Although the other House were not disinclined to criticize the proceedings of this, noble and learned Lords appeared to have framed the Act of 1870 by contributing each a section, without any one of them taking care that the different sections should be consistent one with the other. That that Act should at an early period be largely modified seemed therefore to be a matter of necessity. Those who desired such modifications, however, looting to the shortness of the Session, had determined not to bring them forward this year. There was, under these circumstances, no intelligible reason why this Bill should not meanwhile pass, and thus remedy the admitted injustice of a husband taking his wife's property, and yet not being liable for her debts. Nor was any such reason to be extracted from the not very short treatise on the law of husband and wife, with which the House had been favoured by the hon. and learned Member for Cambridge. That hon. Member had remarked with some force on the absurdity of having a different law in every one of the three divisions of the United Kingdom. But the only foundation for these remarks was the fact that the word "Ireland" in the Bill had been printed by mistake for "Scotland," and this could, of course, be corrected in Committee.


said, that he had received many complaints relating to the flaw in the Act of 1870, which caused great injustice to creditors. Under the present law, a woman might contract debts to any amount, and then, if she afterwards married a man without a settlement, the creditor had no resource. This was a casus omissus which should be at once remedied, for in his opinion husband and wife should never be treated in reference to property as entirely separate persons. In the present Bill there were many points which needed amendment, but still upon the whole he should support the second reading, it being a measure which would remedy many evils.


said, that he could have wished that the Bill had been expressed in terms more apt and proper to give effect to the object sought to be attained; but still it hit what was clearly a blot in the existing law. Before the Act of 1870, a man marrying a woman possessed of property acquired that property, unless it were settled on her, but he became liable for her debts. In 1870 two amendments, or perhaps he should rather say alterations, were made in the law, the one giving the means of protecting certain property of the married woman from the husband, and enacting that it should be held to be her separate property; and the other providing that the woman's husband should not be liable after marriage for any debts she might have contracted before marriage. The consequence was, that in many cases the husband acquired all a woman's property, while her creditors lost any security they might have had for the payment of their debts. The scope and purport of the present Bill were to make the husband liable for the debts of the wife to the extent of the property he had acquired by his marriage. The Bill might, and he believed would, require some amendment in Committee, and some of the suggestions made by his hon. and learned Friend the Member for Cambridge (Mr. Marten) would deserve consideration in Committee, but he trusted that he would withdraw his Amendment and allow the Bill to be read a second time.


assented to the Bill, but with the same reservation as to the necessity of considering the wording of the provisions in Committee, as he considered they were open to amendment.


held that piecemeal legislation never worked satisfactory, and on that ground he was opposed to proceeding further with the Bill. The Act of 1870 required amendment in other respects, and it was highly inconvenient dealing with the subject in the limited manner proposed by the Bill. Although acceding to the principle put forward, he did not agree with those who wished to extend the rights of creditors over property bonâ fide put in settlement for the benefit of the issue of the marriage, but would confine their rights to monies actually coming to the hands of the husband. Without any alteration of the law as it now stood, property belonging to a woman, put in settlement on her marriage fraudulently with the object of defeating creditors, could be followed. It was necessary to amend the law by declaring that a married woman, trading separately, should be competent to contract, and be made liable, in certain cases, to be made bankrupt. He would oppose the extension of this Bill in its present shape to Ireland. He was, in fact, opposed to this kind of piecemeal legislation; and even if they put aside the argument that the subject should be dealt with in a comprehensive manner, it was a sufficient objection to this Bill that the clauses were very badly drawn up, and needed much careful consideration and amendment. As several alterations were necessary in the law as it now stood, it would be much better, in his opinion, to let the whole matter remain over for a short time, and devote the interval to the consideration of how the law affecting the whole question could be clearly and accurately stated.


said, that he sympathized a good deal with what had fallen from the hon. Member who last spoke as to the impolicy and injustice of following property which had become the subject of bonâ fide settlements made on and in consideration of marriage. The objects of these settlements were not only the husband and wife, but the children of the marriage, and their position ought not to be affected by liabilities of the mother antecedent to the marriage. With respect to the Bill itself, there seemed to be such unanimity of opinion as to the course to be taken that it was unnecessary for him to say much upon it. In principle the Bill was perfectly right; but the clauses by which that principle was to be carried out were so worded that it was doubtful if they would effect the object. There should be no doubt whatever as to the liabilities of a man who married a woman with property—namely, that, if afterwards sued for debts contracted by her before marriage, he should be liable to the extent of the property he acquired by or through her, and no further. He advised his hon. Friend the promoter of the Bill to confine it to this point, notwithstanding the friendly suggestions he had received in the course of the discussion. No doubt in some respects the Bill required alteration, but there could be little objection to the measure if it were confined to that principle.


, in reply, acknowledged the general acceptance which the Bill had met with on the part of the House, while at the same time he was compelled to admit that the objections which had been made by several hon. and learned Members were deserving of consideration. His simple object was to secure the assent of the House to the principle of the Bill, and he would be glad to take counsel with hon. and learned Gentlemen who had pointed out defects in the wording of the Bill, in order to introduce such Amendments in Committee as would secure for the measure the sanction of the House.

Question, "That the word 'now' stand part of the Question," put, and agreed to.

Main Question put, and agreed to.

Bill read a second time, and committed for Friday 24th April.