Married Women's Property Act 1893 (NSW)

No. XI

An Act to amend the law relating to the

Rights and Liabilities of Married Women.

[17th April, 1893.]

so far as relates to married women, to the statute law of England :	WHEREAS it is desirable to assimilate as far as practicable the statute law of this Colony relating to property and contract,
Bo it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and
Legislative Assembly of New South Wales in Parliament assembled,
and by the authority of the same, as follows :—
1. d) A married woman shall be capable of acquiring, holding, and disposing, by will or otherwise, of any real or personal property
as her separate property, in the same manner as if she were a feme sole,
without the intervention of any trustee.

(n) A married woman shall be capable of entering into and

rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme

sole, and her husband need not be joined with her as plaintiff or
defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered
by her in any such action or proceeding shall be her separate property,

and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise.

(in) Every contract entered into by a married woman after

the passing of this Act, shall be deemed to be a contract entered into

by her with respect to and to bind her separate property, unless the

contrary be shown.

(iv) Every contract entered into by a married woman after

the passing of this Act, w i t h respect to and to bind her separate property shall bind not only the separate property if any which she

is possessed of or entitled to at the date of the contract, but also all

separate property which she may thereafter acquire, whether during her then coverture or any future coverture, and, in the event of her becoming discovert, all property which shall be acquired by her during discoverture. And the same shall be liable to satisfy any judgment, decree, or order in respect of such contract, notwithstanding that such woman had no separate property at the date of such contract, or at the date of such judgment, decree, or order, or that she was discovert at the date of such judgment, decree, or order : Provided that nothing contained in this Act shall render a married woman liable to imprison­ ment for debt : Provided also that no separate property subject to restraint against anticipation shall be liable for any debt contracted during coverture, or shall be rendered so liable by determination of coverture, nor shall any money be so liable which is payable under any policy of insurance effected by any husband of the debtor.

acquired by him after the date thereof.

2. The wi l l of a married woman made after the passing of this

Act shall be as effectual both in respect of any separate property after­

wards acquired by her during her then coverture, and, in the event of her becoming discovert, in respect of any property acquired by her during discoverture, as the will of a man now is in respect of property

3. Every woman who marries after the commencement of this
Act shall he entitled to have and to hold as her separate property, and

to dispose of in manner aforesaid, all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic,

or scientific skill.

4. Any money or other estate of the wife, lent or entrusted by her to her husband for the purpose of any trade or business carried on
by him, or otherwise, shall be treated as assets of her husband's estate

in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate, after, but not before, all claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied.
5. The execution of a general power by will by a married woman shall have the effect of making the property appointed liable
for her debts and other liabilities, in the same manner as her separate

estate is made liable under this Act.

6. Every woman married befoi*c the commencement of tins

Act shall be entitled to have and to hold, and to dispose of in manner

aforesaid, as her separate property all real and personal property, her title to which, whether vested or contingent, and whether in pos­ session, reversion, or remainder, shall accrue after the commencement

of this Act, including any wages, earnings, money, and property so
gained or acquired by her as aforesaid.
7. Every chose in action to which a married woman shall be

entitled after the passing of this Act shall be deemed to be a property,
the title to which accrues after the commencement of this Act.

8. All deposits in any post office or other swings bank, or in any other bank, all annuities granted by any person, company, or corporation, and all sums forming part of the public stocks or funds,
or of any other stocks or funds transferable in the books of any bank,
which at the commencement of this Act are standing in the sole name

of a married woman, and all shares, stock, debentures, debenture

stock, or other interests of or in any corporation, company, or public
body, municipal, commercial, or otherwise, or of or in any industrial, provident, friendly, benefit, building, or loan society, which at the com­

mencement of this Act are standing in her sole name, shall be deemed, unless and until the contrary be shown, to be the separate property of	such married woman ; and the fact that any such deposit, annuity,
sum forming part of the public stocks or funds, or of any other stocks
or funds transferable in the books of any bank, share, stock, deben­
ture, debenture stock, or other interest as aforesaid, is standing in the sole name of a married woman, shall be sufficient prima facie evidence that she is beneficially entitled thereto for her separate use, so as to authorise and empower her to receive or transfer the same, and to
receive the dividends, interest, and profits thereof, without the con­
currence of her husband, and to indemnify the Postmaster-General, the Government of the Colony of New South Wales, and all directors, managers, and trustees of every such bank, corporation, company, public body, or society as aforesaid, in respect thereof.
9. All sums forming part of the public stocks or funds, or of any other stocks or funds transferable in the books of any bank, and
all such deposits and annuities respectively as are mentioned in the
last preceding section, and all shares, stock, debentures, debenture
stock, and other interests of or in any such corporation, company, public

body,

body, or society as aforesaid, which, after the commencement of this

Act, shall be allotted to or placed, registered, or transferred in or into

or made to stand in the sole name of any married woman shall be deemed, unless and until the contrary be shown, to be her separate property, in respect of which so far as any liability may be incident thereto her separate estate shall alone be liable, whether the same shall be so expressed in the document whereby her title to the same is created or certified, or in the books or register wherein her title is entered or recorded, or not : Provided always that nothing in this Act shall require or authorise any corporation or joint stock company to admit any married woman to be a holder of any shares or stock therein to which any liability may be incident, contrary to the provisions of any Act of Parliament, charter, by-law, articles of association, or deed

of settlement regulating such corporation or company.

10. All the provisions hereinbefore contained as to deposits in any post-office or other swings bank, or in any other bank, annuities granted by any person, company, or corporation, sums forming part
of the public stocks or funds, or of any other stocks or funds transfer­
able in the books of any bank, shares, stock, debentures, debenture

stock, or other interests of or in any such corporation, company, public

body, or society as aforesaid respectively, which at the commencement

of this Act shall be standing in the sole name of a married woman, or
which, after that time, shall be allotted to, or placed, registered, or transferred to or into, or made; to stand in, the sole name of a married woman, shall respectively extend and apply, so far as relates to the estate, right, title, or interest of the married woman, to any of the particulars aforesaid which, at the commencement of this Act, or at any time afterwards, shall he standing in, or shall be allotted to, placed, registered, or transferred to or into, or made to stand in, the name of any married woman jointly with any persons or person other than her husband.

11. I t shall not be necessary for the husband of any married woman, in respect of her interest, to join in the transfer of any such annuity or deposit as aforesaid, or any sum forming part of the public stocks or funds, or of any other stocks or funds transferable as aforesaid, or any share, stock, debenture, debenture stock, or other benefit, right, claim, or other interest of or in any such corporation, company, public body, or society as aforesaid, which is now or shall at any time hereafter be standing in the sole name of any married woman, or in the joint names of such married woman and any other person or persons not being her husband.

12. I f any investment in any such deposit or annuity as aforesaid, or in any of the public stocks or funds, or in any other

stocks or funds transferable as aforesaid, or in any share, stock,

debenture, or debenture stock of any corporation, company, or public body, municipal, commercial, or ̂ otherwise, or in any share, debenture, benefit, right, or claim whatsoever in, to, or upon the funds of any industrial, provident, friendly, benefit, building, or loan society, shall have been made by a married woman by means of moneys of her husband, without his consent, the Court may, upon an application under section eighteen of this .Vet, order such investment, and the dividends thereof, or any part thereof, to be transferred and paid respectively to the husband ; and nothing in this Act contained shall give validity as against creditors of the husband to any gift, by a husband to his wife, of any property, which, after such gift, shall continue to be in the order and disposition or reputed ownership of the husband, or to any deposit or other investment of moneys of the husband made by or in the name of his wife in fraud of his creditors, but any moneys so deposited or invested may be followed as if this

Act had not passed. 13.

13. The benefit of every policy of life assurance heretofore or
hereafter effected by a married "woman by virtue of this or any other

Act shall enure for her separate use unless otherwise expressed therein. A policy of assurance effected before or after the passing of this Act

by any man on his own life, and expressed to be for the benefit of his

wife, or of his children, or of his wife and children, or any of them, o r

by any woman on her own life, and expressed to be for the benefit of her husband, or of her children, or of her husband and children, or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object

of the trust remains unperformed, form part of the estate of the insured,
or be subject to his or her debts : Provided that if it shall be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out

of the moneys payable under the policy, a sum equal to the premiums

so paid. The insured may by the policy, or by any memorandum under his or her hand, or by will, appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trustee or new trustees thereof, and may make provision for the appoint­ ment of a new trustee or new trustees thereof, and for the investment of the moneys payable under any such policy. In default of any such appointment of a trustee, such policy, immediately on its being effected, shall vest in the insured and his or her legal personal representatives, in trust for the purposes aforesaid. If, at the time of the death of the insured, or at any time afterwards, there shall be no trustee, or it shall be expedient to appoint a new trustee or new trustees, a trustee or trustees or a new trustee or new trustees may be appointed by any Court having jurisdiction under the provisions of the " trustee Act, 1852," or the Acts amending and extending the same. The receipt o f a trustee or trustees duly appointed, or in default of any such appoint­ ment, or in default of notice to the insurance office, the receipt of the
legal personal representative of the insured shall be a discharge to the office f or the sum secured by the policy, or for the value thereof, in

whole o r in part.

14. Subject to any provisions expressed in any policy referred to in the last preceding section, the person effecting such insurance shall have p o w e r to appoint, by deed or will what shares or interests in the moneys secured thereby shall accrue to each of the persons f o r whose benefit the insurance was expressed to be made. In default o f such appointment, or so far as the same does not extend, then, subject

a s aforesaid, children expressed in any such policy shall be entitled in

together with a child or children, such wife or husband shall be	equal shares, and, when a wife or husband is expressed to be benefited
entitled to the whole for life, and such child or such children in equal shares shall be entitled to the remainder.
15. Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies, and also (subject, as regards her husband, to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security
o f her own separate property, as if such property belonged to her a s a
feme sole; but, except as aforesaid, no husband or wife shall be entitled
to sue the other for a tort. In any indictment or other proceeding under this section it shall be sufficient to allege such property to be her property: Provided always that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together as to or concerning any property claimed by her, nor while they a r e living apart, as to o r concerning any act done by the husband while they were living together, concerning property claimed by the

wife ,

wife, unless such property shall have been wrongfully taken or such act done by the husband when lewing or deserting, or about to lewe or

desert his wife, and for the purposes of this Act a wife compelled to lewe her husband's residence under reasonable apprehension of danger to her person, or under oilier circumstances which may reasonably
justify her withdrawal from such residence, shall be deemed and taken
to have been left and deserted by her husband.

A woman after her marriage shall continue to be liable; in

respect and to the extent of her separate property for all debts con­ tracted, and contracts entered into or wrongs committed by her before her marriage including any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint stock companies; and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect of any such wrong ; and all sums recovered against her in respect thereof, or
for any costs relating thereto, shall be payable out of her separate
property; and, as betwBen her and her husband, unless there be any contract betwBen them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof: Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this
Act for any such debt, contract, or wrong as aforesaid, except as to
any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Act hereby repealed or otherwise, if this Act had not passed.
17. A husband shall he liable for the debts of his wife con­ tracted, and for all contracts entered into and wrongs committed by her, before marriage, including any liabilities to which she may be so
subject under^thc Acts relating to joint stock companies as aforesaid,
to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bond fide recovered against him in any proceeding at law, in respect of any such debts, contracts, or wrongs, for or in respect of which his wife was liable before her marriage as aforesaid ; but be shall not be liable for the same any further or otherwise!, and any Court in which a husband shall be sued

which it may think proper for the purpose of ascertaining the nature,	for any such debt shall have power to direct any inquiry or proceedings
amount, or value of such property : Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of any such debt or other liability of his wife as aforesaid.
18. A husband and wife may be jointly sued in respect of any such debt or other liability (whether by contract or for any wrong) contracted or incurred by the wife before marriage as aforesaid, if the
plaintiff in the action shall sBek to establish his claim, cither wholly
or in part, against, both of them; and if in any such action, or in any action brought in respect of any such debt or liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him, or to which he shall have become so entitled as aforesaid, he shall have judgment for his
costs of defence, whatever may be the result of the action against the
wife if jointly sued with him; and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent

n of

of the amount for which the husband is liable shall be a joint judg­

ment against the husband personally and against the wife as to her separate property; and as to the residue, if any, of sucli debt and damages, the judgment shall be a separate judgment against the wife as to her separate property only.
19. A wife doing any act with respect to any property of her husband, which, if done by the husband with respect to property of the wife, would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband.

20. In any criminal proceeding against a husband or a wife authorised by this Act, the husband and wife respectively shall be competent and admissible witnesses, and, except when defendant, compellable to give evidence.
21. In any question betwBen husband and wife as to the title to or possession of property, either party, or any such bank, corpo­ ration, company, public body, or society as aforesaid, in w h o s e books any stocks, funds or shares of either party are standing, may apply, by summons or otherwise in a summary way, to any Judge of the Supreme Court of New South Wales, or (if the value of the property in dispute shall not excBed two hundred pounds) to any Judge of the

District Court within whose jurisdiction the property shall be, and the

Judge of the Supreme Court or of the District Court (as the case may

be) may make such order with respect to the property in dispute, and

as to the costs of and consequent on the application, as he thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he shall think fit: Provided always that any order o f a Judge of the Supreme Court to be made under the provisions of this section shall be subject to appeal in the same way as an order made by the same Judge in a suit or action pending in the said Court would be; and any order of a District Court or Judge thereof under the provisions

of this section shall be subject to appeal in the same way as any other
order made by the same Court or Judge would be: Provided also that the Judge of the Supreme Court or District Court if cither party so require, may hear any such application in his private room: Provided also that any such bank, corporation, company, public body, or society as aforesaid shall, in the matter of any such application for the purposes of the costs or otherwise be treated as a stakeholder only.

22. A married woman who is an executrix or administratrix alone or jointly with any other person or persons of the estate of any
deceased person, or a trustee alone or jointly as aforesaid of property
subject to any trust, may sue or be sued, and may convey or join in
conveying any land, or transfer or join in transferring any such annuity or deposit as aforesaid, or any sum forming part of the public

stocks or funds, or of any other stocks or funds transferable as afore­

said, or any share, stock, debenture, debenture stock, or other benefit, right, claim, or other interest of or in any such corporation, company, public body, or society in that character, without her husband, as if she were txfeme sole.
23. Notwithstanding that a married woman is restrained from anticipation, the Supreme Court, in its equitable jurisdiction, may,

if it thinks fit, where it appears to the Court to be for her benefit, by
decrBe or order, with her consent, bind her interest in any property. Except as provided in this section nothing in this Act contained shall
interfere with or affect any settlement or agrBement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation at present attached or to

be

bo hereafter attached to the enjoyment of any properly or income by a woman under any settlement, agrBement for a settlement, will, or other instrument; but no restriction against anticipation contained in any settlement or agrBement for a settlement of a woman's OWII property to be made or entered into by herself shall haAC any validity against debts contracted by her before marriage, and no settlement or agrBe­ ment for a settlement shall have any greater force or validity against creditors of such woman than a l ike settlement or agrBement for a- settlement made or entered into by a man would have against liis creditors.

24. A married woman, whether an infant or not, shall after the passing of this Act have power, as if she wcre unmarried and of full

age, by deed, to appoint an attorney on her behalf for the purpose of
executing any deed, or doing any other act whieh she might herself

execute or do.

25. In the construction of any gift or limitation of real or personal property made after the passing of this Act, by any will, deed, or other instrument, to more than one individual jointly or in common, a husband and wife shall not be regarded as one person for the purpose of deciding the proportionate shares of such individuals respectively, unless a contrary intention therein appears.

20. The "Married Women's Property Act," forty-two Victoria

number eleven, and an Act to amend the " Married women's Property

Act," fifty Victoria number nine, are hereby repealed : Provided that

such repeal shall not affect any act done or r ight acquired while such Acts respectively were in force, or any r igh t or liability of any husband or wife married before the commencement of this Act, to sue or be sued under the provisions of the said repealed Acts, for or in respect of any debt, contract, wrong, or other ma t t e r or th ing whatsoever , for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act.
27. For the purposes of this Act the legal personal representa­ tive of any married woman shall in respect of her separate estate and as a trustee thereof have the same rights and liabilities as she would have and be subject to the same jurisdiction as she would be if she were living.

28. The word " contract" in this Act shall include the accept­ ance of any trust, or of the office of executrix or administratrix, and the provisions of this Act as to liabilities of married women shall extend to all liabilities by reason of any breach of trust or devastwit committed by any married woman being a trustee or executrix or

administratrix either before or after her marriage, and her husband shall
not be subject to such liabilities unless he has acted or intermeddled

in t h e trust or administration. The word "property" in th is Act

includes a chose in action.

29. This Act may be cited as the " Married Women's Property

Act, 1893."

No. X I I .