THE EFFECT OF MARRIAGE UPON PROPERTY IN SCOTS LAW1

Published date01 November 1956
Date01 November 1956
DOIhttp://doi.org/10.1111/j.1468-2230.1956.tb00383.x
THE
EFFECT
OF MARRIAGE
UPON PROPERTY
IN
SCOTS LAW
IN
the common law of Scotland there existed from mcdieval times
until the nineteenth century a system of proprietary relations
between spouses characterised by many of the distinctive features
of a community system in its technical sense. That system has
been abolished only in part, and some knowledge of its features
is necessary for an understanding of the modern law.
The institutional writers spoke of the “communion of goods
betwixt the married persons,”2 but the legal device which gave
effect to the community was extremely crude. Marriage carried
the moveable estate3 of the wife to the husband by an implied
universal assignation known as the
jus
mariti.
Its
passive counter-
part was the husband’s liability for
his
wife’s pre-marital moveable
debts. During the marriage no steps were taken to protect the
wife’s interest and the husband could deal with the “goods in
communion
as
if
she did not exist. On its dissolution, however,
there emerged the widow’s
jus
relictae,
by which she became
entitled to one-third
or
one-half of her husband’s moveable estate
-one-third if he left children and one-half if he left no children
or
if
the children’s right to
Zegitim
had been discharged.“
Jus
relictae
subsists unchanged today. The common law vested
no
corresponding right in the husband because in theory the wife
had no moveable estate of her
own.
The
jus
mariti
could be renounced by the husband in an
antenuptial contract and could be expressly excluded by a third
party conveying
or
bequeathing estate to the wife. In relation
to such estate, and to the heritable estate of the wife, the husband
enjoyed a right of administration; that is to say, his consent
was required to every act
of
management of his wife’s estate.
This right, too, could be renounced
or
excluded; but its exclusion
was not inferred automatically from an exclusion of the
jus
mariti.
1
Portions of the following discussion hnve already been published and nre
reproduced with the permission of the Institut de Droit Compard de
I’Universitd de Paris and
of
the Editor of the
Scots
Lou,
Times.
Tho article
was written before the publication of the Report
of
the Royal Commission
on
Mnrringo nnd Divorce (Cmd. 1956,
No.
9678) and takes no occount
of
its
recommendntions.
2
Stair’s
Inslitulions,
i.4.9 and 17
;
Erskine’R
Iwtitutes,
i.6.12; Bell’s
Principles,,
para. 1549.
3
Heritable estate is property which is either immoveable in fact or by pre-
sumption
of
law.
4
Even when a wife predecensed her husband her executors were cntitled at
common law to one-third or one-half of the husband’s moveable estate. Since
this right nrose during the husbnnd’s lifetime it cannot be described as
n
right of succession.
It
was abolished by thc Intestate Movenble Succession
(Scotlandj Act, 1855,
8.
6.
All
other property is moveable.
658
654
THE
MODERN
LAW
REVIEW
VOL.
19
The fruits of the wife’s heritage were moveable and fell under
the husband’s
jw
mariti.
The husband’s right to these fruits
could be said
to
have been projected beyond thk dissolution of
the marriage by the husband’s right of courtesy, which entitled
(and still entitles) a widower to the liferent enjoyment of his
former wife’s heritage.6
A
widow,
on
the other hand, had (and
still has) merely the right to the liferent of one-third of her former
husband’s heritable estate, a right referred
to
as “terce.”
The exclusion both of the husband’s
jus
mariti
and his right
of administration did not mean that a wife could contract as
though she were unmarried. The common law, in the words
of
Erskine, was
so
solicitous to protect wives from imposition while
they are
sub
cura man’ti,
as to declare all personal obligations
granted by the wife, though with the husband’s consent, to be
ips0 jure
void
. .
.
because her person being
quodammodo
sunk
in that of her husband, is not a proper subject
of
obligation.”’
A married woman could grant competently neither bonds, bills,
promissory notes, cautionary obligations, nor guarantees. This
disability had
no
direct connection with the
jus
mariti
and the
husband’s right of administration, because her obligations were
void “though with her husband’s consent” and where she held
property exclusive of her husband’s right of administration. The
practical objection to any other rule would have been the levying
of
diligence against the person of the wife and the rule applied
only where the enforcement of the obligation might subject her
to
personal diligence. She might therefore alienate her property,
with the consent of her husband where necessary.
The community concept, such
as
it
was in the common law
of
Scotland, was undeveloped and bore’many traces
of
its primitive
origins.’
It
was, therefore, out of place
to
subject
it
to a rigorous
analysis in terms of
R
sophisticated jurisprudence. Yet, with the
quasi-reception of Roman law in Scotland,
it
was inevitable that
the concept should be judged according to Roman ideas ahout
ownership, obligation, and partnership.
It
was not long before
Scottish jurists emphasised the incompatibility of the husband’s
unfettered
jus
utendi et abutendi
of the estate falling to him
jure mariti
with any principle of common ownership.’ At the
same time the Union of the Parliaments
led
Scots lawyers
to
6
Courtesy
in the common law of Bootland differed slightly from the corre-
sponding institution:, in Normandy and England.
In
early documents it is
referred
to
an
the
courtesy
of
Scotland
‘I:
R.
I(.
Hannay (ed.),
Acla
of
the
Lords
of
Council
in
Civil
Ajaira,
p.
179.
6
Erakine,
supra,
i.6.25.
By
wa
of
illustration it may
be
mentioned that formerly
a
wife was
not
entit.leyto
jua
refictae
unless
a
child
hod
been
born
of the marriage
or
unless
it
had
subsisted for
n
year and
a
day.
A
similar rule is
to
be
found in
many
of the French
customn
and
has
been
linked there with the
usage
of
the
communautd
taisibfe,
a
primitive Germanic institution of which traces
are
to
be
found in 8cotland.
8
Levan
v.
Montgomery
(less)
M.
6803;
Bain,
Notes
lo
Mackenzie’s
Znalilutiona.
i.6.8.8.

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