Married Women's Property Act (1879 No 7a) (NSW)

No. XI.

An Act to amend the Law relating to the Rights and Liabilities of Married Women. [20th March, 1879.]

J H E R E A S it is desirable to assimilate as far as pract icable t h e

s t a tu te law of th is Colony re la t ing to proper ty and cont rac t so far as relates to mar r ied women to t he s ta tu te law of E n g l a n d Be i t therefore enacted by the Queen ' s Mos t Exce l l en t Majesty by and wi th t h e advice and consent of t he Legis la t ive Council and Legislat ive Assembly of N e w South Wales in Pa r l i amen t assembled and by t h e au thor i ty of t he same as follows :—

1. This A c t may be cited for all purposes as t he " Marr ied

W o m e n ' s Proper ty A c t . "

2. The wages and earn ings of a marr ied w o m a n acquired or gained by he r after t h e pass ing of th i s A c t in any employment occupa­ t ion or t r ade in which she is engaged or which she carries on separately from her husband or after desert ion by h im and also any money or p roper ty so acquired by her t h r o u g h the exercise of any l i terary ar t is t ic or scientific skill and all inves tments of such wages earn ings money or p roper ty (and for t he purposes of this A c t t h e t e r m " invest­ men t s " includes conversion in to real es ta te or reconversion thereof in to personal ty) shall be deemed and t a k e n to be proper ty held and sett led to he r separate use independen t of any husband to w h o m she m a y be mar r ied a n d he r receipts alone shall be a good discharge for such wages earn ings money and proper ty .

3 . A n y deposit hereafter made in any Savings B a n k in t h e n a m e of a marr ied woman or in t h e n a m e of a woman who m a y m a r r y after such deposit shall be deemed to be t h e separate proper ty of such w o m a n and the same shall be accounted for and paid to her as if she were a n u n m a r r i e d w o m a n Provided t h a t if any such deposit is made by a marr ied woman by means of moneys of her husband wi thou t his consent t he Court m a y upon appl icat ion u n d e r section n ine of th is Ac t order such deposit or any p a r t thereof to be paid to t h e husband .

4.   A married woman or woman about to be married may apply

1 8 7 3 "

in wr i t ing to t he directors or manage r of any incorporated or jo in t stock company t h a t any fully pa id-up shares or any debenture or deben tu re stock or any stock of such company to t he holding of which no liabili ty is a t t ached and to which the woman so app ly ing is ent i t led m a y be registered in the books of t h e said company in t he n a m e or in tended n a m e of t h e woman as a mar r ied w o m a n ent i t led to he r separate use A n d i t shall be t he du ty of such directors or manage r to regis ter such shares or stock accordingly and the same u p o n being so registered shall be deemed to be t h e separate proper ty of such woman and shall be t ransferred and the dividends a n d profits paid as if she were an unmar r i ed woman Provided t h a t if any such inves tment as last ment ioned is m a d e by a marr ied w o m a n by means of moneys of her husband wi thou t his consent t he Cour t may upon an applicat ion u n d e r section n ine of th i s A c t order such inves tmen t and t h e dividends a n d profits the reon or any pa r t thereof to be t ransferred and paid to t he husband .

5. A marr ied woman or w o m a n about to be mar r ied m a y apply

in wr i t ing to t he commit tee of m a n a g e m e n t of or to t h e t rustees

of any society duly regis tered unde r t h e " F r i end ly Societies Ac t of

1 8 7 3 " or any A c t in force for t h e t ime be ing regu la t ing Fr iendly Benefit Bui ld ing or Co-operat ive Trad ing Societies t h a t any share benefit r igh t or c laim whatsoever in to or upon the funds of such society to t he hold ing of which share or benefit no l iabil i ty is a t tached and to which t h e woman so apply ing is ent i t led m a y be en te red in t h e books of t he society in t h e n a m e or in tended n a m e of t h e w o m a n as a mar r ied woman ent i t led to her separate use A n d i t shall be t he du ty of such commi t tee or t rus tees to cause t he same to be so entered and the reupon such share benefit r i gh t or c laim shall be deemed to be t he separate proper ty of such w o m a n and shall be t r ans ­ ferable and payable w i th all dividends and profits the reon as if she were an unmar r i ed woman Provided t h a t if such share benefit r igh t or c la im has been obtained by a mar r ied woman by means of moneys of her h u s b a n d wi thou t his consent t he Cour t m a y upon an applicat ion unde r section nine of this Act order t he same and t h e dividends and profits the reon or any pa r t thereof to be t ransferred a n d pa id to t he husband .

6. N o t h i n g hereinbefore contained shall as against creditors of the husband give val idi ty to any deposit or inves tment of moneys of t h e husband made in fraud of such creditors or w h e n he was in fact insolvent and any moneys so deposited or invested m a y be followed as if th is Ac t had not been passed.

7. W h e r e a woman mar r i ed after t he passing of th is A c t shall

du r ing her mar r iage become ent i t led to any personal p roper ty as nex t of k in or one of t he n e x t of k i n of an in tes ta te or unde r any deed or will such p roper ty shal l subject and wi thou t prejudice to t h e t rus t s of any se t t lement affecting t h e same belong to t he woman for he r separate use and her receipts alone shall be a good discharge for t h e same.

8. W h e r e a w o m a n marr ied after the pass ing of th i s A c t shal l

become ent i t led unde r t he " Real E s t a t e of In tes ta tes Dis t r ibut ion Ac t of 1862" or any A c t amend ing t h e same to an estate of freehold in real estate or to any in teres t in t h e proceeds of any sale thereof the interest in such proceeds or t he ren t s and profits of such proper ty shall subject and wi thout prejudice to t he t rus t s of any se t t lement affecting t he same belong to such w o m a n for her separate use and he r receipts alone shall be a good discharge for t he same.

9. I n any quest ion be tween husband and wife as to proper ty declared by this Act to be or claimed the reunder as t he separate p roper ty of t he wife ei ther pa r ty m a y apply by summons to a J u d g e of t he Supreme Cour t who may the reupon m a k e such order direct such inqui ry and award such costs as he shall t h i n k fit A n d the

J u d g e m a y if e i ther pa r ty so requ i re hear t he appl icat ion in his

p r iva te room	Provided t h a t any such order shall be subject to appeal
to t h e Supreme	Court .

10. A mar r ied woman m a y effect a policy of insurance upon her own life or t h e life of her husband for he r separate use and the same and all benefit thereof if expressed upon the face of i t to be so effected shall enure accordingly and the cont rac t in such policy shall be as valid as if m a d e wi th an unmar r i ed w o m a n A policy of insurance effected by any mar r ied m a n on his own life and expressed upon the face of it to be for t he benefit of his wife or of his wife and chi ldren or any of t h e m shall enure and be deemed to be a t r u s t for t he benefit of his wife for her separate use and of his children or any of t h e m according to t he in teres t so expressed and shall no t so long as any object of the t r u s t r emains be subject to t he control of t h e husband or forms par t of his estate W h e n the sum secured by t h e policy becomes payable or a t any t ime previously a t rus tee thereof m a y be appointed by the Supreme Court and t h e receipt of such t rus tee shall be a good discharge to t h e office or form par t of his estate Provided t h a t if i t shall be

proved

proved t h a t t h e policy was effected and p r e m i u m s paid by the husband wi th in ten t to defraud his creditors they shall be ent i t led to receive out of t h e sum secured an a m o u n t equal to t h e p remiums so paid P ro ­ vided also t ha t no th ing in th i s section conta ined shall be deemed to

affect t h e " Life Assurance E n c o u r a g e m e n t Ac t of 1862 . "

1 1 . A mar r ied w o m a n m a y ma in t a in an act ion in her own n a m e

for t h e recovery of any wages earn ings money and proper ty by th is A c t declared to be or claimed the r eunde r as he r separate p roper ty or of any p roper ty be longing to her before marr iage and which her husband shall by any wr i t ing u n d e r his h a n d have agreed wi th he r shall belong to her after mar r i age as he r separate proper ty which proper ty is hereby declared to be he r separate proper ty or of any proper ty set t led to he r separate use and she shall have in he r own n a m e t h e same remedies bo th civil a n d cr iminal aga ins t all persons whomsoever for t h e pro­ tec t ion and securi ty of such wages earn ings money and proper ty and of any chat te ls or o ther p roper ty purchased or obtained by means thereof for her own use as if such wages earn ings money chat te ls and proper ty belonged to he r as an unmar r i ed w o m a n and in any ind ic tment or other proceeding i t shall be sufficient to allege such wages earnings money

chat te l s a n d proper ty to be he r p roper ty .

12. A husband and wife mar r ied after t he passing of th is A c t m a y be jo int ly sued for any debt of t h e wife's contracted before mar r i age or for a n y to r t commi t t ed by t h e wife before mar r iage and t h e husband shall i n a n act ion b rough t for damages sustained by reason of any to r t commi t t ed by the wife before marr iage or by reason of t h e breach of any con t rac t m a d e by t h e wife before mar r i age be liable for t he debt or damages respectively to t he ex t en t only of t h e assets hereinafter specified and in addit ion to any other plea m a y plead t h a t he is no t liable to pay t h e debt or damages in respect of any such assets as hereinafter specified or confessing his l iabil i ty to some a m o u n t which a m o u n t he shall pay in to Cour t t h a t he is no t l iable beyond w h a t h e so confesses and if no such plea is pleaded t h e husband shall be deemed to have confessed his l iabili ty so far as assets are concerned.

13 . I f i t is no t found in such act ion t h a t t he husband is l iable

in respect of	a n y such assets or t o a n a m o u n t beyond t h e a m o u n t so
paid into Cour t he shal l have j u d g m e n t for his costs of	defence
wha tever t h e resul t of t he act ion m a y be agains t his wife.
14. W h e n a husband and wife are sued jo in t ly if by confession or otherwise i t appears t h a t t h e husband is l iable for t h e debt or

damages recovered or any par t thereof t h e j u d g m e n t to t h e ex ten t of

t h e a m o u n t for which the husband is l iable shall be a jo in t j u d g m e n t against t h e husband and wife and as to t h e residue if any of such debt or damages t he j u d g m e n t shall be a separate j u d g m e n t against t he wife.

15 . The assets in respect of a n d to t h e ex ten t of which the

husband shall in any such act ion be liable are as follows :

(1.) The va lue of t h e personal estate in possession of t h e wife which shall no t become or be separate proper ty u n d e r th i s A c t
(2.) The value of the choses in act ion of t h e wife which the husband shall have reduced in to possession or which wi th reasonable dil igence h e m i g h t have reduced in to possession

(3.) The value of t h e chat te ls real of t h e wife which shall have

vested in the husband a n d wife

(4.) The va lue of t he r en t s and profit of t h e real estate of t he

wife which t h e husband shall have received or wi th reason­

able dil igence m i g h t have received

(5.)

(5.) The value of the husband ' s estate or in teres t in any proper ty
real or personal which the wife in contempla t ion of her mar r iage
wi th h im shall have transferred to h im or to any other person
(6.) The value of any proper ty real or personal which t h e wife in
contempla t ion of her marr iage wi th t he husband shall w i th

his consent have t ransferred to any person wi th t he view of

defeat ing or delaying he r exis t ing creditors

Provided t h a t w h e n the husband after mar r iage pays any debt of his wife or has a j u d g m e n t bond fide recovered agains t h im in any such action as in this A c t ment ioned t h e n to t he ex ten t of such payment or j u d g m e n t t h e husband shall not in any subsequent act ion be liable.