Section 16 of the Married Women’s Property Act (Chapter 281) allows a married woman to hold office as a fiduciary.
Where a married woman is —
(a) an executrix or administratrix, alone or jointly with a person other than her husband, of the estate of a deceased person; or
(b) a trustee, alone or jointly with a person other than her husband, of any property subject to a trust,
she — (c) has and may exercise all rights; (d) may execute and perform all powers and functions; and (e) is subject to all liabilities, as such, without her husband, as if she were not married.
Why a specific section was needed
Under the old law a married woman’s acts required her husband’s concurrence, and property she received vested in or was controlled by him. That made her unsuitable as a fiduciary: trust property in her hands risked passing into his.
Section 16 removes the difficulty. She holds the office without her husband, exercises its rights and powers herself, and answers for its liabilities personally.
Section 1 supports the same result by defining “contract” to include the acceptance of a trust or of the office of executrix or administratrix — so section 2(b), which makes her capable of contracting, covers taking office in the first place.
Paragraph (e) and section 1(2)
The provisions of this Act as to the liabilities of married women extend to all liabilities by reason of a breach of trust or devastavit committed by a married woman as a trustee, executrix or administratrix, either before or after her marriage.
The husband of a married woman is not subject to any of those liabilities unless he has acted or intermeddled in the trust or administration.
| Situation | Wife liable? | Husband liable? |
|---|---|---|
| Breach of trust or devastavit committed before the marriage | Yes | No, unless he intermeddled |
| Breach of trust or devastavit committed after the marriage | Yes | No, unless he intermeddled |
| Husband has acted or intermeddled in the trust or administration | Yes | Yes |
A devastavit is a wasting of the estate by a personal representative — loss caused by mismanagement, misapplication or neglect.
To intermeddle is to involve oneself in the administration of an estate or the affairs of a trust without holding the office. A person who does so may be treated as an executor de son tort and answer accordingly.
Section 1(3) states the rule precisely: the husband is liable only if he has acted or intermeddled. If he keeps out of his wife’s trusteeship, he bears no responsibility for it.
This is the same principle as section 14(1), under which the husband is not liable for his wife’s torts or ante-nuptial debts by reason only of his being her husband. Liability follows conduct, not marriage.
“Other than her husband”
Paragraphs (a) and (b) each contemplate a married woman acting alone or jointly with a person other than her husband. The section is about removing the husband from an office he does not hold.
Where husband and wife are both appointed — as co-executors under a will, for example — each holds the office in their own right, and they act together because they are co-fiduciaries, not because of the marriage. Section 4 confirms that a husband and wife may exercise jointly a joint power given to them.
The pattern matches sections 7 and 8, which apply the investment provisions to holdings in a married woman’s name jointly with a person other than her husband.
Two further sections
A married woman having separate property is subject to the same liability for the maintenance of her children as the husband is subject to.
The legal personal representative of a married woman has the same rights and liabilities, and is subject to the same jurisdiction, in respect of her separate estate, as he would have and be if she were living.
A married woman with property of her own bears the same liability to maintain her children as her husband. That is now the general rule: section 8 of the Lukautim Pikinini Act 2015 imposes the duty on a parent, or any person having custody, and Basic Social Obligation (h) of the Constitution places an equal obligation on parents to support, assist and educate their children without discrimination.
Section 18 ensures the Act’s rights and liabilities survive her death — see her remedies over her property. Where a trustee needs to be appointed over policy moneys held on the statutory trust, section 11(5) allows the National Court to appoint one.
Sources
- Married Women’s Property Act (Chapter 281) — ss 1, 2, 4, 7, 8, 11, 14, 16–18
- Lukautim Pikinini Act 2015 — s 8
- Constitution — Basic Social Obligation (h)
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.