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 pro perty, to last beyond his own life, without her concurrence. On the other hand, from the date of the proclamation of the banns all deeds granted by the wife are null if they do not bear the husband's concur rence. Ills right of administration, including the necessity for his concurrence iu the wife's deeds, may be excluded by his resigning his jus mariti in an anteuuptial contract of marriage, or by the special ex clusion of the jus mariti in the title of any estate conveyed to the wifo. Every deed executed by a wife is presumed to have been executed under the coercion of her husband, and may be set aside unless the wife ratify it by oath before a magistrate.
A separation of. married parties may take place either by judicial interference or voluntary contract. Personal violence or acts physi cally or morally injurious on the part of the husband, will justify a judicial separation at the suit of the wife, in which an alimentary allowance is awarded to her proportioned to his means. 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 stipulatea for. The husband whose wife is either judicially or voluntarily sepa rated from him ceases to be responsible for the debts incurred by her after the date of the separation. Her own property is liable to execii Lion 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 transacting business on her own account is liable to diligence against her person, or arrest and immisomnent. The husband has the uncon trolled custody of the children of the marriage during minority. 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.
On the dissolution of a marriage by the death of either party, an anterior question to that of the distribution of the property is, whether the marriage was permanent. A permanent marriage is one which has lasted for a year and part of a day, or of which a living child has been born. In the case of dissolution by death of a marriage not permanent, there is a question of accounting, and the property of the parties is, as nearly as circumstances will permit, so distributed as it would have been had no marriage between them been solemnised. In the case of a permanent marriage, the moveable property is divided as above stated, the survivor getting a half, if there is no issue, and a third if there is issue. Of any real property in which a wife dies infeft, if there have been a living child born of the marriage, and if there is no surviving issue of the wife by a former marriage, the widower enjoys the life-rent use; this is called " the courtesy of Scotland." A widow enjoys the life-rent of one-third part of the lands over which her husband has died infeft, by way of " Terre." The distribution of the property, personal or heritable, may be otherwise arranged by ante nuptial contract, or equivalents to the property to which a party would succeed may be made by the settlements of the deceased.
On the dissolution of marriage by divorce, the offending party forfeits whatever provisions, legal or conventional, he or she might be entitled to from the marriage; and the innocent party, at whose instance the suit of divorce is brought, retains whatever benefits, legal or conven tional, he or she may have become entitled to by the marriage. It follows that when the divorce proceeds at the suit of the wife, she obtains, at the date of the decree of divorce, the provisions which, as above, she would be entitled to on t4ie death of her husband ; and that, on the other hand, if the suit be at the instance of the husband, the wife not only loses her right to such provisions, but forfeits to the husband whatever property she may have brought into the goods in communion.