Married Womens Property Act 1883 (SA)

ANNO QUADRAGESIMO SEXTO ET QUSDRAGESIMO

SEPTIMO

A. D. 1883-4.

No. 300.

An Act to amend the Law of Property and of Contract

with respect to Married Women.

[Assented to, Febrzmry 28222, 1884.l

HEREAS it is expedient to amend the law of property and Preamble-

fore Enacted by the Governor of the Province of South Australia,	W of contract with respect to married women-Be it there-
with the ridvice and consent of the Legislative Council and House of Assembly of the said province, h this present Parliament assembled, as follows:

A-300

1. (1. ) A married woman shall, in accodance with the provisions Married woman t o be

of this Act, be capable of acquiring, holding, and disposing by will capable of holding

.,, ,,,.

perty in the same manner as if she were a feme sole, without the sole.	or otherwise, of any real or personal property as her separate pro- tracting as aftmu
intervention of any trustee.

(2.) A married woman shall be capable of entering into and reri-

dertng herself liable in respect of and to the extent of her separate property on any contract, and of suing and bcing sued, either in contract or in tort, or otherwise, in a11 respects as if shc 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 pro- ceeding 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.

(3.) Every

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The Married Women's Property Act.-1 883-4.

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(3.) Every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire.

(4.) Every married woman carrying on a trade separately from

her husband shall, in respect of her separate property, be subject to

the insolvency laws in the same way as if she were a me sole.

P~P*Y of a woman 2. Every woman who marries after the comrnencen~ent of this

married after the Act

by her .. Act shall be entitled to have and to hold ss her separate property

a ferns UOZU.

and to dispose of in manncr 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 (aincci or acquired by her in any employment, trade, or occupation, in which she is engaged, or h

which she carries on separately from her husband, or by the exercise

of any literary, artistic, or scientific skill.

Loans by wife to 3. Any money or other estate of the wife lent or entrusted by

husband.

her to her husband, or any money or other estate of thc husband lent or entrusted by him to his wife, for the purpose of any tradc or business carried on by him or her or otherwise, shall be treated as assets of the husband's or wife's estate in case of his or her insolvcncy: Provided that the wife or husband lnuy daim a dividend as a creditor for the amount or value of such money or other estate, but unless a memorandum of such loan or transaciion shall have been rrgistered in thc General Itcgistrp Officc, at Adelaide (in a form to be settled by the Rcgistrw-Gencrnl), within fourtccn days of such loan or transaction, all claims of thc othcr cl.cditors of the husband or wife for valuable consideratjon in money or moncy's ~vorth shall first be satisfied.

Execution of general

power. 4. The execution of a genc?ral power by will by a married

woman shall have thc effect of making the propcrty appointed liable for her debts &l other liabilities in the same manner as her separatc estate is made liable untler this Act.

Property acquired

after the Art by a 5, Every woman married before the commencement of this Act

womanman.iedbcfore shall be entitled to hare and to hold and to dispose of in manner

tOh held by aforesaid as her separate property all real and personal property, her

her as a feme sok.

title to which, whether vested or contingent, and whether in posses- sion, reversion, 01. remainder, shall accrue after the commencement of this Act, including any wages, earnings, money, and property so *

gained or acquired by her as aforesaid.

AB to 8tock, &C.. to

which a married 6. All deposits in any post office or any savings bank, or othcr

i. bank, all funds and annuities granted by any Government or corpo- ration, and all sums forming of the inscribed stock of South Aus- tmlia, or of the public stocks or funds of any Government or of any

other

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The Married Women's Property Act.--1 883-4.

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 n married woman, and all shares, stock, debentures, debenture stock, or other interests of or in any corporation, company, or public body, municipal, commercial, or other, or of or in any industrial, pro- vident, friendly, bcncfit, building, or loan society, which at the commcneement of this Act are standing in the name of an): married woman, shall be deemed, unless and until the contrary bc shown, to be hcr separate property; and the fact that the same

yrimti .fclcze evidence that she is beneficially entitled thereto for her P	is standinm in the sole name of a married woman, shall be sufficient
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 concurrence of her liusband, and to indemnify all Governrrt ents, corporations, officers, trustees, and other persons
in respect of such transfer ancl receipts in respect thereof.

7. All sums forming part of any such stocks or funds, and all ~ ~ ~ ~ B $ ~ $ i ~

such deposits a.nd aimuities rcsucctivelv as arc mentioned in the to a married woman.

last p&eding section, mid all &tires, stock, debentures, debenture

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

public body, or society as aforesaid, which after the commcnccmcnt

of this Act shall be allotted to or placed, registered, or trawferred

in or into or made to stand in the sole iinme of any married woman shall bc dccmcd, urdcss and unOil the contrary bc shown, to bc her separate property, in respect of which so far as any liability may be incident thereto her separate estate shall done be liable, whether the same shall be so expressed in the docunlcnt 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 antliorisr! any corporation or joint stocak company to admit any- married wornan to be a holder of any shares

the provisions of any Act of ~ar l iam&t, charter, by-law, articles of or stock therein to which any liability may be incident, contrary to association, or deed ot' settlenient regulating such corporation or company.

8. All the pr.ovisioizs hereinbefore contained as to deposits, names Investments of married in j o b t

annuities, sums forming part of any public stocks or funds, or of any	a	,	0 t h ~.
other stock or funds, or of' any other bank shares, stock, debentures, debenture stock, or othcr interests of or in any such corporation, company, public body, or society as aforesaid respectively, which at the commencement of' this Act shall bc standing in the sole name of a married wornan, or which, after that time, shall be allotted to, or placed, registered, or transferred to or into, or mark 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 as aforesaid which, at the commencement of this Act, or at anv time afterwards, shall be stand-
ing 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. 8. It

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l he Married Women's Property Act.- 1883-4.

Aa to stock, &C.,

standing in the joint Q. It shall not be necessary for the husband of any married

names of a married	woman, in respect of her interest, to join in the transfer of any
woman and others.	such annuity or deposit as aforesaid, or any sum forming part of
such public 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 a t 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.

Fraudulent invest -

mnta with money of 10. If any investment in any such deposit or annuity as afore-

huabaud.

said, or in any public stocks br 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, nluoicipal, 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 inems of moneys of her

husband, without his consent, the Court may, upon an application

under section seventeen of this Act, 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 a~a ins t creditors of thc husband to any gift by a husband to his wife, of any property, which, after such gift, shall continuc to be in the order and disposition or reputed owner- ship of the husband or t o any deposit or other investment of

moneys of the husband nzade by or in the name of his wife in

fraud of his creditors; but any moneys so deposited or invested

may be follawcd as if this ,4ct hall not passed.

Moneys ayable	11. A married woman may by virtue of thc power of making
under pofioy of assu-

rance effected in a	contracts hereinbefore contained effect a policy upon her own life
certain form not to	for her separate use; and the same and all benefit thereof shall

he part of estato of

the insured. cnure accordingly.

A policy of assurance effected by any illan on his o m 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, or by any woman on her own life, and cxpressed 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 favor of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the tmst remains unperformed, form part of the estate of the insured, or bc 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 prcmiurns so paid: l';ovided also that nothing herein contained shall affect the proviso of the thirty-third sestion

of

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The Married Women's Property Act.-l 883-4.

of the " Life Assurance Companies Act," 277 of 1882. The ir,-

s u r d may by the policy, or by any memorandum under his or

her hand, appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trus- tee or new trustees thereof, and may make provision for the appointment 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 trustce, such policy, im- mediately on its being effected, shall vest in the insured and his

or her legal personal reprcscntatives, in trust for the purposes

aforesaid. If, at thc time of the death of the insured, or at any time afterwards, there shall be no trustee, or it shall be cspedient 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 nnder the provisions of "The 'l'rustcc Act, 1855," or the Acts amending and extending thc samc. The receipt of a trustee or trustees duly appointed, or, in default of m y such appoint- ment, o r in default of notice to the insurance office, the receipt of the legal personal representative of the insured shall be a discha~gc

to the office for the sum secured by the policy, or for the value

thereof, in whole or in part.

12. Every woman, whether married before or after this Act, shall ~ m i e a ~ ~ n l a n t o hnvr same civil and

have in her own nnmc against all persons whomsoever, including her ,,inGnal ,,dr,,, ,,

husband, the same civil remedies, and also (subject as regards her fe~~2cso2t. .

husband, to the proviso hereinafter contained) the same remedies and

redress by way of criminal proceedings, fur the protection and

security of her own separatc property, as if such property belonged

to her as a fkme solc, but, except as aforesaid, no husband or wife

shall be enthled to sue the othcr fbr a tort. In any indictment or

other proceeding under this section it shall be sufficient to allege

such property to be her property; and in any proceeding undkr

this section a husband ancl. wife shall be competent to give evidcncc

withstanding: Provided alwa y s, that no criminal proceeding shall Be	against each other, any statute or rule of Ism to the contrary not-
taken by any wife against her hus'uand by virtue of this Act while they are living together, us to or concerning any property claimed by
her, nor while they are living apart, as to or concerning any act done
by thc husband while they were living togethcr, concerning property claimed by the wife, unless such propcrty shall have been wrongfully taken by the husband when lcnvilig or deserting, or about to leave or desert, his wife: Provided also, that in any civil proceedings the wife shall be subject to the like obligation to give or find security for costs as if the wife were a fkme sole.

13. A woman after her marriage shall continue to be liable in Marriedwoman's

respect and to the crtent of her scparatc property for all debts andnrongsanteoe-	liability for contracts
contracted, and all contracts entered into or wrongs cornnlittetl bv U
her before' her marriage, including any sums for which she may b;
liable as a contributory, either before or after she has becn placed on the list of contributories, undcr and by virtuc of thc Acts relating to

joint

46' & 4 7 O VICTORIE, No. 300.

Z 5 e Married Women's Property Act.-1 883-4.

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 between her and her husband, unless there be- any contract between them to the contrary, her separate property shall be dccmed 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.

Husband to be liable

for hie wife's debts	14, A husband shall be liable for the debts of his wife con-
marriage to a certain

contracted before	tracted, and for a11 contracts entered into and wrongs committed
extent.	by her, before marriage, including any liabilities to which she may be so subject under the Acts relating to joint stock con~pnnics 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, aftcr deducting therefrom any payments made by him, and any s u m for which juclgmcnt may have been h o ~ d $tie recovered against him in any proceeding at law, in respect of any
such debts, contracts, or wrongs for or in rcspct of which his wife u7as liable before her marriage as aforesaid; but he shnll not be liable for the same any further or otherwise; and any Court in which a husband shall he sued for any such debt shnll have power to dircct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or valuc of such property: Provided always, t h t nothing in this Act contained
shall operate to increase or diminish the liability of any husband
married before the commencsrnent of' this Act for or in rcspect of any such debt or other liability of his wife as aforesajd: Provided
also that, after the passing of this Act, no h~~sband
debts contracted by his wife on the ground of the iinplied agency of shall be liable for
thc wife: Provided that in any case in which any jndgment shall be obtained against any husband and wife in respect of any tort committecl by the wife after marriage, the husband, if he shall satisfy such judgment or any part thereof, shall be entitled to the extent to which he shall satisfy sucll judgment to enforce such judgment against m y separate estate of the wife, in such and the same manner as the plaintiff could have enforced such judgment against such separate estate if such judgment had been obtained against the wife alone,
Suitg for a n t e - ~ t i a l

liabilities. 15. A husband and wife may be jointly sued in respect of any

such debt or other liability (whcther by contract or for any wrong) contracted or incu~red by the wife before marriage as aforesaid, if the plaintiff in the action shall seek to cstablish his claim, either 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

46" & 4 7 O VICTORIfi, No. 300.

The Married Women's Property Act.-1883-4.

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, wliatcvcr may be thc rcsult 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, thc judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband pcrsonallv and against thc wifc as to her separate property; and as to the &due,

if any, of such debt and damages, the judgment shall be a separate

judgment against the wifc as to hcr separate propcrty only.

16. A wife doing any act with respect to any property of her not of wife rendedng

husband, which, if done by the hushand with respect to property of her liable to criminal	proceedings.
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 hushand.
Qumtiona between

17. In any question between husband and wife as to the title husband and wife as

to or possession of properly, either party, or any such bank,

to property to be

decided in a summary

corporation, company, public body, or society as aforesaid in whose

way.

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 South Australia, or (at thc option of the applicant irrespcctivcly of the value of the property in dispute) to the Local Court of Full Jurisdirtion nearest to which either party resides, and the Judge of the Supreme Court and the Local Court aforesaid may make such ordel. with respect to the property in dispute, and as to the costs of and consequent on the application, as the said Judgc or Court rcspcctively may think fit, or may direct such application to stand over from time to tinw, and any inquiry touching the matter in auestion shall be made in such manner as s~lch

Judge Court shall &ink fit: Provided always, that any order of

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 pending or in an equitable action or proceeding in the same Court would bc; and any order of a Local Court of Full Jurisdiction under the provisions of this section shall be subjcct to appeal in the same way as a judgment of such Court for the same amount as the property in dispute would be, and the appeal shall be conductcd in the manner provided by the "Local Court Act, 186 1 ," with regard to appeals, and by any Acts extend- ing or amending the same, mutatis mutandis, except that the appel- lant's bond shall be for Twenty Pounds only, and if the security be completed, and the appeal proceeded with in accordance with the provisions in that behalf, the proceedings shall be stayed: Provided that all proceedings of a TJocal Court of Full Jurisdiction under this section. where the property in qucstion exceeds Pour Hundred Pounds in value, may, at the option of the defendant or respondent in such proceedings, be removed as of right into the Supreme Court

by

46" & 47° VICTORIE, NO. 300.

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The Married Women's Property Act.-1883-4.

by writ of certiorari or otherwise in accordance with the Local Courts Act, 1861 ," and any other Acts as aforesaid; but any order made, or act done, in the course of such proceedings prior to such removal shall be valid unless order be made to the contrary by such Supreme Court: Provided also that the Judge of the Supreme Court, or the Local Court of Full Jurisdiction, if either party so require, may hear any such application in a private room: Pro- vided further that any such bank, corporation, company, public body, or society as aforesaid shall, in the matter of any such application for the purposes of costs or otherwise, be treated as a,

stakehol der only.

Married woman as

executrix or trustee.

1%. A married woman who is an executrix or administratrix

alone or jointly with any other pcrson or persons of the estate of

any deceased person, or a trustee alone ox jointly as aforesaid of

property subject to m y trust, may sue or be sued, and may transfer or join in transferring any such annuity or dcposit as afore- said or any sum forming part of any 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 interest of or in any such corporation, company, public body, or society in that character, without her husband, as if she were a

f i l e sole.

settlements, and the 19. Nothing in this Act contained shall interfere with or affect	Saving of existing
power to make future any settlement or agreement for a settlement made or to be made, settlements. d e t h c r before or gfter 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 herc- after attached to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by hcrself shall have any

validity against debts contracted by her before marriage, and no	settlement or agreement for a settlement shall haw any greater
force or validity against creditors of such woman than a like scttlcment or agreement for a settlement made or entered into by a man mould have against his creditors.

for maintenance of naniea wOmantia~le 20. Every married woman having separate property shall be

rolativesslld husbnnd. subject to all such liability for the maintenance of her relatives in thc ascending and descending lines, as is provided in the fifth section of The Destitutc Per.sons Act, 1881," as if she were a widow, and shall be as liable to contribute to the maintenance of her husband, if he be without adequate means of support, as by that Act a husband is liable to contribute to the maintenance of his wife, and the powers conferred by that Act, and any Acts extending or amending the same, upon Justices and upon the Destitute Board may be exercised

for the enforcenent of such liabilities of such married woman:

Provided that nothing herein contained shall relieve any husband of

any

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The Married Women's Property Act.- 1 8 83-4.

any liability to contribute to thc maintenance of any relative or

person whom he is now by law bound to maintain.

21. For the purposes of this Act the legal personal representative ~ o g e l representative

of any marricd woman shall in respect of her separate estate have of married woman.

the same rights and liabilities and be subjcct to the same jurisdiction

ss she would if she were living: Provided that nothing hcrein

contained shall take away the effect of any statute of limitations or

of the rule that personal actions die with the person.

22, The word " contract" in this Act shall include the accept- Interpretationof

ance of any trust, or of the office of executrix or idrninistratrix, 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 devastavit committed by any married woman being n, trustcc or exccutris or administratris either before or after her marriage, and her huabal~d

shall not bc subject to such 1i:bldities unless hc Ilas acted W iuter- meddled in the trust or administration. The word " property " in

this -Act ir~clurles a. tlli~lg in action.

23, Thc date of the comlncnccinci~t of this Act sllall be thc first Commencement of

day of January, one thousand cight 1lunduc.d and eighty-four. ~ c t.

24. This Act Inay be cited as the " Married Women's l'roperty Short title.

Act, 1883-4."

I n the name and on behalf of I'Icr Majesty, I hereby assent to

this Bill.

WILLIAM C. F. IEOB1NSON, Govcmor.

Adelaide: By authority, E. SPILLER, Government Printer, North-terrace.

B-300,