Section 10 of the Married Women’s Property Act (Chapter 281) deals with insurance.
A married woman may —
(a) effect a policy of assurance —
(i) on her own life; or (ii) on the life of her husband; or (iii) on a life in which she has an insurable interest; or
(b) enter into a contract for future endowments by way of annuity or otherwise for her separate use,
and the policy or contract and all benefits of the policy or contract enure accordingly.
An instrument by which the payment of moneys by or out of an insurance company’s funds, on the happening of a contingency depending on the duration of human life, by way of (a) life assurance, (b) endowment, or (c) annuity, or otherwise, is assured or secured.
Paragraph (a) — whose life may be insured
| Life insured | Typical purpose |
|---|---|
| (i) Her own life | Provision for her children or her husband on her death |
| (ii) Her husband’s life | Provision for herself and the children if he dies first |
| (iii) A life in which she has an insurable interest | A business partner, a debtor, or another person on whose life she depends financially |
Insurance law requires an insurable interest — a person cannot insure a life in which they have no financial stake. Under the old doctrine of unity of personality it was awkward to say a wife had an insurable interest in her husband, since in law they were treated as one.
Section 10(a)(ii) removes the question by naming the husband’s life expressly. Sub-paragraph (iii) then covers every other case on the ordinary principle.
Paragraph (b) — contracts for future endowments
Paragraph (b) allows a married woman to contract for future endowments by way of annuity or otherwise, and does so expressly for her separate use.
The phrase is the equitable term of art the Act uses in sections 12 and 18 and in section 17. Since section 5, all property a married woman owns is separate property, so the words confirm rather than restrict.
The closing words matter. It is not only that a married woman may take out the policy; the policy or contract and all benefits of it enure accordingly — that is, to her.
Under the old law, money payable to a wife could fall into her husband’s hands. Section 10 ensures the proceeds belong to her, consistent with section 5(1), under which property acquired by or devolving on a married woman belongs to her as if she were not married.
And because section 1 includes annuities within “investment”, an annuity in her sole name attracts sections 6 to 8: it is prima facie hers, she may deal with it and receive the income without her husband’s concurrence, and he need not join in a transfer.
Section 10 and section 2
Section 2(b) already makes a married woman capable of making herself liable in respect of a contract — which, on its face, covers a contract of insurance.
Section 10 puts the matter beyond argument for insurance specifically, because the questions of insurable interest and of who takes the benefit had produced particular difficulty at common law.
Note that section 1 defines “contract” to include the acceptance of a trust or of the office of executrix or administratrix — a reminder that the Act’s treatment of contractual capacity is deliberately broad. See section 16.
The companion provision
Where a spouse effects a policy on his or her own life and expresses it to be for the benefit of his or her spouse and children, or any of them, section 11 creates a trust in favour of the persons named — and while an object of the trust remains unperformed, the moneys do not form part of the estate of the insured and are not subject to his or her debts.
That is the provision that makes life insurance an effective way to provide for a family: see who gets the money under a spouse’s life policy. Note that section 11 applies to a policy effected by a spouse — husband or wife — on his or her own life, whereas section 10 is about a married woman’s capacity to insure her own life, her husband’s, or any life in which she has an interest.
Where creditors allege that a policy was used to put money beyond their reach, section 11(2) provides the answer: if it is proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they are entitled to receive out of the policy moneys a sum equal to the premiums paid, with simple interest at 6% per annum. Compare section 9(2) on gifts and deposits in fraud of a husband’s creditors.
Sources
- Married Women’s Property Act (Chapter 281) — ss 1, 2, 5–12, 16–18
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.