Husband and wife. the Common Law treated them, for most purposes, as one person, giving, with exceptions comparatively unimportant, the whole of a woman's property to her husband for his absolute use, and a husband could not make a grant to his wife at the Common Law, though he might do so: (1) under the Statute of Uses, by granting an estate to another person for her use; (2) by creating a trust in her favour; (3) by the custom of particular places; (4) by surrendering copyholds to her use; and (5) by will.
Equity, however, from very early times, by the doctrines of 'separate use,' 'trusts,' and 'equity to a settlement,' very largely modified the Common Law in favour of the wife; and the statute law has, by s. 1 of the Law Reform (Married Women and Tortfeasors Act), 1935 (25 & 26 Geo. 5, c. 30), almost completely abolished the property distinction between an unmarried and a married woman. See MARRIED WOMEN'S PROPERTY.
At Common Law, a gift of either realty or personal-ity to a husband and his wife and a third person was construed as a gift to the husband and wife of half and the other half to the other person see Re Jeffery, (1914) 1 Ch 375, and cases there referred to. It is now provided that the husband and wife shall for all purposes of acquisition be treated as two person under any disposition coming into operation after 1925 (L.P. Act, 1925, s. 37); and the A.E. Act, 1925, which has substantially altered the rights of husband or wife surviving the other upon intestate succession (see s. 467), provides that a husband and wife shall, for all purposes of distribution and division in an intestacy under that s., be treated as two persons. Under s. 39, ibid., and the 6th sched. To that Act, Part III, tenancies by entireties was converted to joint tenancies upon trust for sale, and by s. 184, ibid., in cases where the survival of either husband or wife after the death of the other is uncertain, the younger shall be deemed to have survived the elder.
The general rule is that a husband is not bound by his wife's contracts, unless made by his authority, express or implied. If any Articles are supplied to the wife which are not necessaries, the legal presumption is that the husband did not assent to his wife's contract. In the case of necessaries, where husband and wife are living together, the presumption is that the wife has the husband's authority to pledge his credit for necessaries suitable in quality and quantity to their then style of living and belonging to a department of the household customarily managed by a wife: this presumption arises from cohabitation (see Jolly v. Rees, (1864) 15 CB (NS) 628). This presumption may be rebutted by proof that the husband prohibited the wife from pledging his credit, or revoked her authority, unless his conduct has been such as to raise an estoppelib between himself and the other contracting party. A notice of such a prohibition given to a plaintiff will preclude him from relying on this presumption (see also Callot v. Nash, 39 LTR 292). Where husband and wife are living apart owing to the former's desertion, or by consent, and the husband fails to maintain her, she has an irrevocable authority, as an agent of necessity, to pledge his credit for necessaries suitable to her position in life.
A policy of insurance taken out by a husband in his wife's name under the Married Women's Property Act, 1882, is the property of his wife and is part of her estate if she predeceases him, Cousins v. Sun Life Assurance Socy., 1933 Ch 126. See INSURANCE.
Sect. 3 of the (English) Law Reform (Married Women and Tortfeasors) Act, 1935, has abolished the husband's liability for his wife's torts and ante-nuptial contracts, debts and obligations.
Previously to this enactment, by the Common Law, in an action in respect of a tort committed by a wife the husband had to be joined as a party, and though by s. 1(2) of the Married Women's Property Act, 1882, the husband need not be joined, yet he usually was still joined as he was liable in respect of his wife's torts committed during covertures, and the aggrieved party was not limited in his remedy to the wife's separate estate, Earle v. Kingscote, (1900) 1 Ch 203, but the husband's liability ceased if, while the action was pending and before judgment, an order for judicial separation was obtained, Cuenod v. Leslie, (1909) 1 KB 880. As to torts in respect of which the husband was not liable, see Edwards v. Porter, (1923) 2 KB 538. As to form of judgment obtained against a married woman, see Scott v. Morley, (1888) 20 QBD 120.
Ante-nuptial debts were provided for by ss. 13-15 (now repealed) of the Married Women's Property Act, 1882, which enacted that a wife was to continue liable for such debts to the extent of her separate property, but that a husband was liable for them to the extent of property acquired by him from his wife, and that the husband and wife might be jointly sued in respect of any such debts.
Proceedings in connection with the rights of mar-riage are regulated by the (English) Matrimonial Causes Acts, 1925 and 1937, and the Judicature
Act, 1925. See DIVORCE and MATRIMONIAL CAUSES. Proceedings of husband and wife against each other in respect of property are regulated by the 12th, 16th, and 17th sections of the Married Women's Property Act, 1882. The 12th section, as amended, enacts that 'every married woman shall have against all persons, including her husband, the same civil and (unless they be living together or the act complained of took place when they were living together) criminal remedies for the protection of her property, as if she were unmarried,' but that, 'except as aforesaid, no husband or wife shall be entitled to sue the other for a tort '; the 16th section, that 'a wife doing any act with respect to the property of her husband, which, if done by the husband with respect to the property of the wife, would make the husband liable to criminal proceedings by the wife, shall in like manner be liable to criminal proceedings by her husband'(see also Larceny Act, 1916, s. 36); and the 17th section, that questions arising between husband and wife as to property may be decided in a summary way (privately, if either party so require) by a judge of the High Court, or (at the option of the applicant irrespectively of the amount in dispute) by the judge of the county Court of the district in which either party resides.
As to criminal law, if a wife commit a felony,
except treason, or murder, or manslaughter, in her husband' presence, the law presumed that she acted under his coercion and excused her, which presumption of coercion was abolished by the Criminal Justice Act, 1925 (15 & 16 Geo. 5, c. 80), s. 47, but it is still a good defence to prove (except in treason or murder) that the offence was committed in the presence of, and under the coercion of the husband; while if in the absence of her husband she commit the felony'even by his order'her covertures is no excuse.
As to maintenance of the wife by the husband under the Poor Law, by 5 Geo. 1, c. 8, a husband running away and leaving wife or children chargeable to a parish is liable to have his goods seized and sold to pay for their maintenance; and by the Poor Law Act, 1930 (20 Geo. 5, c. 17), s. 19, when a married woman requires relief from the poor rates without her husband, an order may be made upon the husband by justices in petty sessions to maintain his wife by paying towards the cost of her relief such sum, weekly or otherwise, in such manner and to such persons as shall appear to the justices to be proper. Payments under this Act, however, can only be made to the wife as a pauper; and a more liberal scale, which may rise as high as 2l. per week, may be given by justices to a deserted or ill-treated wife under the Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), extended by 25 & 26Geo. 5, c. 46, s. 9; the Married Women (Maintenance) Act, 1920 (10 & 11 Geo. 5, c. 63); and the Summary Jurisdiction (Separation and Maintenance) Act, 1925 (15 & 16 Geo. 5, c. 51). The maintenance of the husband by the wife out of her separate property is provided for by s. 14 of the Poor Law Act, 1930.
At Common Law the husband was (as laid down by Coleridge, J., in Ex parte Cochrane (1840) 8 Dowl. 630) considered to have a right to the personal custody of his wife; but in 1891 the Court of Appeal (Lords Halsbury and Esher and Sir Edward Fry) disregarded this and all similar authorities and dicta, and held on a return to a habeas corpus that where a wife refused to live with her husband he was not entitled to keep her in confinement in order to enforce restitution of conjugal rights, Queen v. Jackson, (1891) 1 QB 671.
Consult Lush on Husband and Wife; and see ALIMONY; MARRIED WOMEN'S PROPERTY; JUDICIAL SEPARATION; MATRIMONIAL CAUSES; WITNESS; DIVORCE