Conjugal Rights (Scotland) Amendment Act 1861
(24 & 25 Vict.) C A P. LXXXVI.
[6th August 1861]
'WHEREAS it is expedient to amend the Law ofScotland relating to Husband and Wife:' Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows:
1 A Wife deserted by her Husband may apply for an Orderto protect Property which she has or may acquire by her own Industry, or whichshe may succeed to.
1. A Wife deserted by her Husband may, at any Time after such Desertion, apply by Petition to any Lord Ordinary of the Court of Session, or in the Time of Vacation to the Lord Ordinary on the Bills, for an Order to protect Property which she has acquired or way acquire by her own Industry after such Desertion, and Property which she has succeeded to or may succeed to or acquire Right to after such Desertion, against her Husband or his Creditors, or any Person claiming in or through his Right; and the Lord Ordinary shall appoint such Petition to be intimated in the Minute Book of the Court of Session, and to be served upon the Husband; and the Husband, or any Creditor of the Husband, or any other Person claiming in or through his Right, shall be entitled to lodge Answers to the said Petition, and if the Husband be furth ofScotland , the Petition shall be executed edictally against him on an Induci of Twenty-one Days; and upon considering such Petition the Lord Ordinary shall require Evidence of such Desertion, and on being satisfied thereof pronounce an Interlocutor giving to the Wife Protection of her Property as aforesaid against the Husband and all Creditors or Persons claiming under or through him; and if Answers be lodged to the said Petition, the Lord Ordinary may, on considering the same, and, if he consider it necessary, after hearing Parties, allow a Proof to them of their respective Averments, which Proof he shall take himself, and either write the Evidence with his own Hand, in which Case it shall be read over to the Witness by the Judge, and signed by the Witness, if he can write, or the Lord Ordinary shall record the Evidence by dictating it to a Clerk, in which Case it shall, when taken down, be read over and signed as above; or the Lord Ordinary shall cause the Evidence to be taken down and recorded by a Writer, skilled in Shorthand Writing, in manner after mentioned, and it shall be competent to the Lord Ordinary, in special Cause shown, instead of taking such Proof, to grant a Commission to take said Proof elsewhere than in Edinburgh , in which Case he may pronounce an Interlocutor setting forth such special Cause, and granting Commission to take such Proof, and if satisfied after Proof of the Fact of such Desertion, and that the same was without reasonable Cause, he shall pronounce an Interlocutor giving to the Wife Protection as aforesaid, and he shall appoint Intimation of the said Interlocutor having been pronounced to be made in One or more Newspapers published within the County within which the Wife is resident, or in such other Newspapers as the Lord Ordinary may appoint.
2 Husband or Creditor may apply by Petition for Recal of Order.
2. It shall be lawful for the Husband, or any Creditor or other Person claiming in or through his Right, if such Creditor, Husband, or other Person have not lodged Answers as aforesaid, to apply by Petition to the Lord Ordinary by whom such Order was made for the Recal thereof; and the Lord Ordinary shall appoint such Petition to be answered by the Wife, and thereafter dispose of the Application as he shall think just; but such Recal shall not affect any Right or Interest onerously andbon fide acquired by any Third Party from the Wife before said Recal; and the Lord Ordinary shall direct that Publication of his Interlocutor be made in manner herein-before provided.
3 Interlocutors may be reviewed.
3. All Interlocutors of the said Lord Ordinary may be brought under Review of either Division of the Court of Session, by lodging and boxing within Twenty-one Days after the pronouncing of such Interlocutors, if in Session; and if the said Twenty-one Days shall expire during Vacation, by lodging in the Bill Chamber a Reclaiming Note and boxing the same at the First Box Day after the Expiryof the said Twenty-one Days: Provided always, that, notwithstanding such Reclaiming Note, the Interlocutor of the Lord Ordinary granting Protection shall take effect when intimated as aforesaid, unless the Lord Ordinary, either at the Time of the pronouncing thereof or within Forty-eight Hours thereafter, order that his Interlocutor shall not take effect till the advising of the Reclaiming Note, or such other Period as he may, think fit; and such Order of Protection shall, where there has been Appearance by the Husband, continue operative until such Time as the Wife shall again cohabit with her Husband, or until the Lord Ordinary, upon a Petition by the Husband, shall be satisfied that he has ceased from his Desertion, and cohabits with his Wife; and the Lord Ordinary may require him to find Security for such Period as may be appointed, that he shall continue to cohabit with her; and upon the Lord Ordinary being so satisfied, and Security found, if required, he shall recal the Orderof Protection; but such Recal shall not affect any Right or Interest acquired by the Wife while the said Order subsisted, which Right and Interest shall remain vested in her, exclusive of her Husband's Jus mariti and Right of Administration; nor shall it affect any Right or Interest acquired by a Third Party during such Period, or any Third Party through or from her, while the said Order subsisted; and until such Order be recalled it shall not be competent for the Husband to institute an Action of Adherence against his Wife; and the Lord Ordinary shall direct that Publication of its Recal be made in manner herein-before provided.
4 After Interlocutor of Protection pronounced, Propertyof Wife to belong to her as if unmarried.
4. After an Interlocutor of Protection is pronounced, and duly intimated, the Property of the Wife as aforesaid shall belong to her as if she were unmarried: Provided always, that such Protection shall not extend to Property acquired by the Wife of which the Husband or his Assignee or Disponee has before the Date of presenting said Petition obtained full and complete lawful Possession, nor shall such Protection affect the Right of any Creditor of the Husband over Property which he has before the Date thereof duly attached by Arrestment, followed by a Decree of Forthcoming, or which such Creditor has before the said Date duly poinded, and of which he has carried through and reported a Sale.
5 Effect of Order of Protection.
5. If any such Order of Protection be made and intimated, it shall have the Effect of a Decree of Separationa mens et thoro in regard to the Property, Rights, and Obligations of the Husband and of the Wife, and in regard to the Wife's Capacity to sue and be sued.
6 In case of Separation Property of Wife to belong herexclusively of the Jus mariti, &c.;
6. After a Decree of Separationa mens et thoro obtained at the Instance of the Wife, all Property which she may acquire, or which may come to or devolve upon her, shall be held and considered as Property belonging to her, in reference to which the Jus mariti and Husband's Right of Administration are excluded, and such Property may be disposed of by her in all respects as if she were unmarried, and on her Decease the same shall, in case she shall die intestate, pass to her Heirs and Representatives, in like Manner as if her Husband had been then dead; provided that if any such Wife should again cohabit with her Husband all such Property as she may be entitled to when such Cohabitation shall take place shall be held to her separate Use, and the Jus mariti and Right of Administration of her Husband shall be excluded in reference thereto, subject, however, to any Agreement in Writing made between herself and her Husband; and the Wife shall, while so separate, be capable of entering into Obligations, and be liable for Wrongs and Injuries, and be capable of suing and being sued, as if she were not married; and her Husband shall not be liable in respect of any Obligation or...
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