MARRIED WOMEN'S PROPERTY (SCOTLAND) BILL. (Hansard, 1 November 1920)

§ The LORD ADVOCATE (Mr. Morison)
I beg to move, "That the Bill be now read a Second time."
This Bill proceeds on principles approved by a Committee of Conveyancers appointed by one of my predecessors in office, and I wish to express my high appreciation of the services which that Committee gave in recommending this and some other legislation. The Bill was drafted by the Committee, and it has been revised by my friend the Solicitor-General for Scotland and myself. It proposes to amend the law regarding the property of married women in Scotland, and in order that the House may follow the Sections of this Bill I desire to give a very brief explanation of what our law is. By the Common Law of Scotland a married woman is incapable of legal obligation. Her property became by marriage the property of the husband. The rigour of the Common Law was modified to some extent by a series of Statutes, the most important of which were the Married Women's Property Act, 1877, and the Married Women's Property Act, 1881, but at present the wife is still subject to the husband's right of administration, under which her deeds and writings in disposing of her property and all transactions in regard to her separate estate require the consent of her husband, with a minor exception, introduced by the Married Women's Property Act, 1881. Still, the law is that the wife is incapable of legal obligation, and the husband must be called to any suit in which 111 she is sued, and in general his concurrence is required to any action raised at her instance. The present Bill makes very important changes on all these matters, and it is the aim of the Bill to place a married woman, as regards her own property, in exactly the same position as the husband is.
The Bill does not affect arrangements which are made under ante-nuptial marriage contracts, but under Clause 2 of the Bill the husband's right of administration is abolished, although the husband remains his wife's curator during her minority. By Clause 3 of the Bill a married woman may enter into contracts and sue and be sued as if she were unmarried in regard to her own estate. Clause 5 deals with a special and, I think, important question. Our law, differing from the law of England in this respect, is that gifts between husband and wife are revocable and may even be revoked in a testamentary writing by either the husband or the wife. In many ways it seems that this rule has operated unfairly. The most striking illustration I can give the House of its unfairness is to consider the case where a woman, with no separate estate of her own, has yet helped the husband very considerably in his business and has no certainty that she is to receive any benefit from it. She may have assisted him in making his fortune. He may have made her some reward for her assistance, and yet he might revoke it either under his will or, indeed, at any time. Accordingly, we propose to take the opportunity of making our law in Scotland the same as in England on this subject. There is a technical conveyancing advantage in having this rule, because unless gifts were irrevocable, it would still be unsafe to dispense with the husband's consent to any deed by which a married woman conveyed her property, unless it were absolutely clear from the title that the property had not been derived from the husband. The other provisions in the Bill are mainly formal. Protection is given to the creditors of a man who seeks to defeat creditor's rights by such gifts, and the fourth Clause in the Bill renders the wife liable, if she has a superfluity of her estate, to support an indigent husband. That is also a new provision in our law. In short, I may say that the Bill removes married 112 women from the disabilities presently affecting them in regard to their own estates and, indeed, places them in the same position as married men are with regard to theirs. I feel sure that a Bill of this character will receive support from all quarters in the House.

§ Mr. HOGGE
I do not think it is necessary for me to speak in support of the Bill, because my right hon. Friend knows from conversations with us how we welcome the Bill and hope to see it speedily pass into law.

§ Sir F. BANBURY
Might I ask why this Bill is confined to Scotland? It appears to alter the law very considerably, and, speaking from a man's point of view, in the right direction. It seems to me to be the first result of female suffrage. Under it a married woman will now have to keep her husband in the event of her husband being unable to maintain himself. I have not any particular objection to that, and I am very glad that the view of the women voters is that all the anomalies under which the man was suffering are to be done away with; but I want to know why a Scottish husband who might be unable to maintain himself should be supported by a Scottish wife, whereas an English husband who is unable to maintain himself cannot be supported by an English wife.

§ Mr. HOGGE
Marry a Scotswoman.

§ Sir F. BANBURY
I am already married, and I do not wish to commit bigamy. Clause 3 says that a married woman shall be capable of entering into contracts and incurring obligations as if she were not married, and there, again, I think it is not a bad Clause, and I should be inclined to think it would be well to extend it to England. I have always opposed woman's suffrage, and I have not changed my mind. I should still oppose it if I were able to do so, but I am glad, at any rate, that they recognise their obligations and that one of the first effects of woman's suffrage is that she is prepared to maintain her husband if he cannot maintain himself.

§ Mr. W. GRAHAM
I desire to associate myself with other Scottish Members who give this Bill a very cordial welcome, and I have only one question to put: on Clause 6 of the Bill. The Lord Advocate has pointed out that Clause 6 expressly 113 reserves antenuptial contracts, and apparently the rest of the Bill does not affect any agreement which may be entered into under them. The only doubt I have in my mind is this: Will not a Bill of this kind, which we all welcome, lead to certain efforts in connection with antenuptial contracts to get round its terms? Many antenuptial contracts, as far as I have been able to follow them, are made in circumstances which cannot be regarded as fair or perfectly balanced. If that danger is present at all, and if there is a chance of contracting out, so to speak, of the first four or five Clauses of this Bill, which we all endorse, is it necessary and possible to strengthen Clause 6 in such a way as to render a state of affairs like that impossible?

Dr. MURRAY
While, with my hon. Friends, I welcome this Bill, I should like a little more explanation about Clause 4. It seems to me to open out opportunities for male adventurers to look up the legacies given to women in Scotland, and, by a matrimonial alliance, ensure themselves of a decent income for the rest of their lives without working. I think the Clause will surely have to be modified. I have no doubt the Courts would probably take reasons of that sort into account, but the Clause seems to open up opportunities for a man who is not anxious to work getting married to a lady with plenty of means and being able to go about the world without having to work at all. Clause 4 might encourage parasitic action of that sort, and I should like, to hear how that can be guarded against.

§ Mr. MORISON
I have to thank hon. Members who have spoken for welcoming this Bill. With regard to the question of the obligation which the Bill is proposing to place upon married women who have a superfluity of estate to support indigent husbands, there is a difference between the law of England and the law of Scotland. Under the law of England a woman who has a superfluity of estate is bound to free the parish from the maintenance of her husband. In Scotland a married woman is under no such obligation. This was decided in the case of Fingies in 1890, and the law accordingly in the two countries differs on that subject. We propose here that the married woman's estate should be under exactly the same obligation to her indigent husband as the husband's is to an indigent wife.

§ Sir F. BANBURY
It goes further than merely indemnifying the guardians for keeping a husband in the workhouse.

§ Mr. MORISON
Yes, that is exactly the proposal. We wish to place the husband's estate and the wife's estate in exactly the same position, and it is generally thought that is fair. But, of course, this Clause can be further discussed in the Scottish Grand Committee, if necessary. My hon. Friend the Member for Edinburgh raised a question with regard to ante-nuptial marriage contracts, and it is necessary that ante-nuptial marriage contracts should not be at all affected by the provisions of this Bill, because, with us, the marriage settlement is part of the consideration of the marriage, and I can scarcely accept the suggestion that marriage contracts are often unfair. As a rule, both the husband and the wife have skilled legal advice, and they are in the position therefore of contracting upon equal terms, and I fancy the general view would be that our marriage contract should remain as part of our law. I think there are very few instances in which marriage contracts turn out to be unfair as between the two contracting spouses. I quite agree you sometimes get instances where hardships may arise, but these are cases in which the difficulty is not the contract, but as to how the provisions of the marriage contract have worked out, looking at the contingencies which have happened. Therefore, we propose, as regards the law as to ante-nuptial contracts, that it should remain as it is. If there are other points I have not noted, perhaps hon. Members will take an opportunity of raising them at the Scottish Grand Committee.