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Married Women's Property Act [Cap 37]

LAWS OF FIJI

CHAPTER 37

MARRIED WOMEN’S PROPERTY

Arrangement of Sections

SECTION

1. Short title
2. Interpretation.
3. Married woman to be capable of holding property and of contracting as a feme-sole.
4. Property of a woman married after the Act to be held by her as a feme-sole.
5. Loans by wife to husband.
6. Execution of general power.
7. Property acquired after the Act by a woman married before the Act to be held by her as a feme-sole.
8. As to stock, etc., to which a married women is entitled.
9. As to stock, etc., to be transferred, etc., to a married woman.
10. Investments in joint names of married woman and others.
11. As to stock, etc., standing in the joint names of a married woman and others.
12. Fraudulent investments with money of a husband.
13. Moneys payable under policy of assurance not to form part of estate of the insured.
14. Remedies of married woman for protection and security of separate property.
15. Wife's ante-nuptial debts and liabilities.
16. Husband to be liable for his wife's debts contracted before marriage to a certain extent.
17. Suits for ante-nuptial liabilities.
18. Act of wife liable to criminal proceedings.
19. Husband or wife competent witnesses in certain criminal proceedings.
20. Questions between husband and wife as to property to be decided in a summary way.
21. Married woman as an executrix or trustee.
22. Saving of existing settlements and the power to make future settlements.
23. Married woman to be liable for the maintenance of her children.
24. Personal representative of married woman.
25. Effect on Cap. 217.

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Ordinance No. 14 of 1891

AN ACT TO DECLARE THE LAW RELATING TO THE PROPERTY OF
MARRIED WOMEN

[1st January, 1892.]

Short title

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

Interpretation

2. In this Act-

"contract" includes the acceptance 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 devastavit 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 the trust or administration;

"property" includes a thing in action.

Married woman to be capable of holding property and of contracting as a feme-sole

3.-(1) A married woman shall in accordance with the provisions of this Act 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.

(2) 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.

(3) Every contract entered into by a married woman 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.

(4) 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.

(5) Every married woman carrying on a trade separately from her husband shall in respect of her separate property be subject to the bankruptcy laws in the same way as if she were a feme-sole.

Property of a woman married after the Act to be held by her as a feme-sole

4. Every woman who marries after the commencement of this Act shall be 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.

Loans by wife to husband

5. 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.

Execution of general power

6. 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 the provisions of this Act.

Property acquired after the Act by a woman married before the Act
to be held by her as a feme-sole

7. Every woman married before the commencement of this 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 possession, 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.

As to stock, etc., to which a married woman is entitled

8. All deposits in any savings bank or in any other bank, all annuities and all sums 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 commencement of this Act are standing in her 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 any stocks or funds, share, stock debenture, 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 concurrence of her husband.

As to stock, etc., to be transferred, etc., to a married woman

9. All sums forming part of any stocks or funds and all such deposits and annuities respectively as are mentioned in section 8 and all shares, stock, debentures, debenture stock and other interests of or in any such corporation, company, public 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 contained 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, charter, by-law, articles of association or deed of settlement regulating such corporation or company.

Investments in joint names of married woman and others

10. All the provisions hereinbefore contained as to deposits in any savings bank or in any other bank, annuities, sums forming part of any stocks or funds, 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 be .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 person or persons other than her husband.

As to stock, etc., standing in the joint names of a married woman and others

11 It 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 aforesaid or any sum forming part of any stocks or funds 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.

Fraudulent investments with money of a husband

12. If any investment in any such deposit or annuity as aforesaid or in any stocks, funds 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 the provisions of section 20, 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.

Moneys payable under policy of assurance not to form part of estate of the insured

13.-(1) A married woman may by virtue of the power of making contracts hereinbefore contained effect a policy upon her own life or the life of her husband for her separate use and the same and all benefit thereof shall enure accordingly.

(2) A policy of assurance effected by any man on his own life and expressed to be for the benefit of his wife or his children or of his wife and children or any of them or 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.

(3) The insured 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 trustee 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 trustee such policy, immediately on its being effected, shall vest in the insured and his or her personal representatives in trust for the purposes aforesaid. The receipt of a trustee or trustees duly appointed or, in default of any such appointment or in default of notice in the insurance office, the receipt of the personal representative of the insured, shall be a discharge to the office for the sum secured by the policy or for the value thereof in whole or in part.

Remedies of married woman for protection and security of separate property

14. Every woman, whether married before or after the commencement of 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 of her own separate property as if such property belonged to her as 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 proceedings 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 are living apart, as to or concerning any act done by the husband while they were living together concerning property claimed by the wife unless such property shall have been wrongfully taken by the husband when leaving or deserting or about to leave or desert his wife.

Wife's ante-nuptial debts and liabilities

15. A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted and all contracts entered into or wrongs committed by her before her marriage 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 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 the provisions of this Act and to which she would not have been entitled for her separate use if this Act had not been passed.

Husband to be liable for his wife's debts contracted
before marriage to a certain extent

16. A husband shall be liable for the debts of his wife contracted and for all contracts entered into and wrongs committed by her before marriage 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 bone fide recovered against him in any proceeding at law in respect of any debts, contracts or wrongs for or in respect of which his wife was liable before her marriage as aforesaid, but he shall not be liable for the same any further or otherwise, and any court in which a husband shall be sued for any such debt shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, 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.

Suits for ante-nuptial liabilities

17. 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 seek to establish 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 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 of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her separate property and as to the residue (if any) of such debt and damages the judgment shall be a separate judgment against the wife as to her separate property only.

Act of wife liable to criminal proceedings

18. A wife doing any act with respect to any 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 under the provisions of this Act shall in like manner be liable to criminal proceedings by her husband.

Husband or wife competent witnesses in certain criminal proceedings

19. In any such criminal proceedings against a husband or wife as is authorised by the provisions of this Act the husband or wife respectively shall be competent and admissible witnesses and, except when defendants, compellable to give evidence.

Questions between husband and wife as to property to be decided in a summary way

20. In any question between husband and wife as to the title to or possession of property, either party, or any such bank, corporation, company, public body or society as aforesaid in whose books any stocks, funds or shares of either party are standing, may apply by summons or otherwise in a summary way to a court of competent jurisdiction, and such court may make such order with respect to the property in dispute and as to the costs of and consequent on the application as it 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 it shall think fit:

Provided that-

(a) any order of the court made under the provisions of this section shall be subject to appeal in the same way as an order made in a suit in the said court would be;

(b) any such bank, corporation, company, public body or society as aforesaid shall, in the matter of any such application for the purpose of costs or otherwise, be treated as a stake-holder only.

Married woman as an executrix or trustee

21. 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 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 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 in that character without her husband as if she were a feme-sole.

Saving of existing settlements and the power to make future settlements

22. Nothing in this Act contained shall interfere with or affect any settlement or agreement 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 hereafter 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 herself shall have any validity against debts contracted by her before marriage and no settlement or agreement for a settlement shall have any greater force of validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors.

Married woman to be liable for the maintenance of her children

23. A married woman having separate property shall be subject to all such liability for the maintenance of her children as the husband is now by law subject to for the maintenance of her children:

Provided always that nothing in this Act contained shall relieve her husband from any liability imposed upon him by law to maintain her children.

Personal representative of married woman

24. For the purposes of this Act, the personal representative of any married woman shall, in respect of her separate estate, have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living.

Effect on Cap. 217

25. Nothing in this Act contained shall be deemed to affect in any way or lessen in any degree the effect of the provisions of the Insurance Act.

Controlled by Ministry of the Attorney-General

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