Marriage Settlement - Definition - Law Dictionary Home Dictionary Definition marriage-settlement

Definition :

Marriage settlement, an arrangement made before marriage, and in consideration of it (the highest consideration known to the law), whereby real or personal property is settled for the benefit of the husband and wife and the issue of the marriage. There is an express saving for such a settlement in s. 19 of the (English) Married Women's Property Act, 1882, and see the (English) Married Women's Property Act, 1907 (7 Edw. 7, c. 1), invalidating a settlement made by a female infant unless confirmed after attaining 21, but without prejudice to settlements under the Infants Settlement Act, 1855 (see post, MARRIED WOMEN'S PROPERTY).

Although the policy of the land legislation of 1924 was to assimilate the law of real property to that of personalty as far as possible, marriage settlements of land (not being effected by way of trust for sale), and if providing for infant or for a succession of interests in land or charging land (but in this case subject to the (English) Law of Property Amendment Act, 1926), are settlements within the meaning of s. 1 of the (English) Settled Land Act, 1925, and must be effected by two instruments: (a) the vesting deed, and (b) the trust instrument; while settlements of land on trust for sale should also be effected by two deeds: (a) the conveyance on trust for sale, and (b) the trust instrument; see TRUST INSTRUMENT and VESTING DEED; SETTLED LAND.

Before 1926, marriage settlements were of different kinds, according as the property settled consisted of real or personal estate, and the distinction is still convenient. Speaking broadly, they still fall into three distinct classes, though of course with innumerable variations in details, the particular provisions to be inserted being a matter for discussion and arrangement between the parties and their legal advisers. (1) If it consists of real estate of considerable value which it is desired to preserve in the family, the property is frequently settled on the husband or the wife, according to the source of the property, for life, with remainder to the first and other sons in tail with remainder to the daughters in tail, the limitations formerly legal being now equitable, and the wife or husband and younger children being respectively provided for by a jointure or determinable life interest and portions charged on the estates. (2) If the property consists of real estate it is now more generally conveyed (see TRUST FOR SALE) to trustees upon trust to sell and hold the proceeds upon the trusts declared by a deed of even date, which declares the trusts of the proceeds in practically the same form as a settlement of personal estate. (3) If the property to be settled consists of personal estate, as stocks or shares, it is assigned to trustees upon trust for sale and to invest, pay the income to the husband and wife or vice versa, according to the source of the fortune, successively for life, and on the death of the survivor hold the capital in trust for the issue of the marriage as the parents or the survivor may appoint, and in default of appointment for the children equally. It is a well-settled rule that the costs of the settlement are paid by the husband though the property settled may be that of the wife, see Helps v. Clayton, (1864) 17 CBNS 553.

By the (English) Infant Settlement Act, 1855 (18 & 19 Vict. c. 43), a male of 20, or a female of 17, with the sanction of the Court may, subject to the provisions of the (English) Settled Land Act, 1925, s. 27, make a binding settlement on marriage.

By the (English) Judicature Act, 1925, s. 19(1), the Divorce Court is empowered, in cases where a marriage has been dissolved, or a sentence of judicial separation has been pronounced, on the ground of the wife's adultery, to order such settlement, as it shall think reasonable, to the made of any property to which the wife is entitled, for the benefit of the innocent party, and of the children of the marriage, or any of them; and any instrument executed by the order of the Court under this enactment shall be deemed valid, notwithstanding coverture at the time of execution. By Judicature Act, 1925, s. 192, the Court may, after a final decree of divorce or for nullity of marriage, inquire into any ante-nuptial or post-nuptial settlements, and make such orders as to the application of the property settled, for the benefit of the children of the marriage or of their parents, as seem fit, and the Court may exercise the powers conferred notwithstanding that there are no children of the marriage. See DIVORCE; Browne and Watts on Divorce; Dixon on Divorce.

In Scotland, the legal rights of spouses and children may be defeated by an ante-nuptial contract of marriage but not by a post-nuptial contract.