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Roman Marriage Wife Wife

husband, property, separation, communion, execution, wifes, judicial, debts, unless and hus

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WIFE, ROMAN. [MARRIAGE.] WIFE. (Scotland). The moveable or personal estate of a husband and wife is under the administration of the husband ; according to the phraseology of the law it is called "the goods in communion," because on the dissolution of the marriage by the death of either party, it falls to be so divided that if there be issue of the marriage a third, and if there be no issue a half, goes to the nearest of kin or to the legatees of the deceased, whether hus band or wife, the remainder being the property of the survivor. During the continuance of the marriage the hus band's right, as administrator, is in all respects equivalent to the right of a pro prietor ; and whether the common pro perty has been acquired by himself or by the wife, it is entirely at his disposal, in so far as that disposal is intended to have effect during his lifetime. His right of bequeathing it is limited by the Scottish law of succession. [WILL.] As the hus band has the administration of the wife's property, he is responsible not only to the extent of the goods in communion, but personally, for the wife's obligations, whether contracted before or after mar riage. Action against a wife for debts contracted before marriage is laid against herself, but her husband is cited as ad ministrator of the goods in communion, and while all "diligence" or execution for attaching property falls on the goods in communion, he is liable to whatever execution may proceed against the per son. In case of the dissolution of the marriage before execution, the execution will proceed only against the portion of the goods in communion which falls to the share of the wife or to her represen tatives, and will not lie against the per son of the husband. No suit can be raised against a married woman unless the hus band has been made a party. The wife cannot of herself enter into a contract exigible by execution against the goods in communion and the person of her hus band, unless in certain cases in which by general law or by practice she holds an agency. To this effect she is praeposita negotiis domesticis, and whatever debts she incurs for household purposes are debts against the husband. The husband may discharge himself from debts so in curred, by suing out an " inhibition " against her in the Court of Session. The sphere of her authority may be enlarged by her husband intrusting to her the management of any department of busi ness, and she will then, as ostensibly au thorized to represent him in the transac tions relating to the business, render him responsible for the performance of her acts, as a principal is responsible for those of his agent. A wife's agency will not extend, without special authority, to the borrowing of money.

Heritable property (a term nearly equivalent to that of real property in England) belonging to either party is in the administration of the husband. He can, however, grant no lease of his wife's heritable property, to last beyond his own life, without her concurrence. On the

other hand, from the date of the procla mation of the banns, all deeds granted by the wife are null if they do not bear the husband's concurrence. His right of ad ministration, including the necessity for his concurrence in the wife's deeds, may be excluded, either generally or in rela tion to some particular estate. The for mer can only take place by his resigning his jus mariti in an antenuptial contract of marriage; the latter may be accom plished by the special exclusion of the jus mariti in the title of any estate con veyed to the wife. Every deed executed by a wife is presumed to have been exe cuted under the coercion of her husband, and is reducible as a deed executed under the effect of force and fear, unless the wife ratify it by oath before a magistrate. On occasion of the ratification, not only must the husband be absent, but the act of ratification must bear that he was so.

A separation of married parties may take place either by judicial interference or voluntary contract. Actions of judi cial separation proceed before the court of session, which in such cases exercises its consistorial jurisdiction as succeeding to the commissary court. Personal vio lence or acts physically or morally in jurious on the part of the husband, will justify a judicial separation at the suit of the wife. That the husband insisted on retaining a servant with whom he had held an illicit intercourse before the mar riage was held a ground of judicial se paration. (Letham v. Letham, 8th March, 1823, 2 S. D, 284.) In judicial separa tions at the instance of the wife, an ali mentary allowance is awarded to her against the husband, proportioned to his means. When a husband abandons his wife, an alimentary allowance will be awarded to her without a judicial separa tion. A voluntary separation may take place by mutual agreement, but in such a case an alimentary allowance will not be awarded unless it has been stipulated for. It is in a wife's power, however, notwith standing a voluntary separation, to sue for judicial separation if the previous conduct of the husband towards her would justify it, and thus obtain an award of alimony. The husband whose wife is either judicially or voluntarily separated from him ceases to be responsible for the debts incurred by her after the date of the separation. Her own property is liable to execution for her obligations, but not her person, unless her husband be living out of Scotland, in which case it has been decided that a wife transact ing business on her own account is liable to diligence against her person, or palest and imprisonment. (Orme v. Diffors, 30th November, 1833, 12 S. D. 149.) The husband has the uncontrolled cus tody of the children of the marriage during pupillarity. The court of session will interfere for their protection in the case of their personal ill-usage, or of danger of contamination, but not on the ground of a special estate being settled on a child by a third party.

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