Section 14 of the Married Women’s Property Act (Chapter 281) is the counterpart of the capacity conferred by section 2.
The husband of a married woman is not, by reason only of his being her husband, liable —
(a) in respect of a tort committed by her, whether before or after the marriage, or in respect of a contract entered into, or a debt or obligation incurred, by her before the marriage; or
(b) to be sued, or made a party to a legal proceeding brought, in respect of any such tort, contract, debt or obligation.
The two categories
| Wife's liability | Husband liable? |
|---|---|
| Tort committed before the marriage | No — s 14(1)(a) |
| Tort committed after the marriage | No — s 14(1)(a) |
| Contract, debt or obligation incurred before the marriage | No — s 14(1)(a) |
| Being sued or joined as a party in respect of any of the above | No — s 14(1)(b) |
Note the asymmetry in paragraph (a). For torts the exemption covers wrongs committed before or after the marriage. For contracts, debts and obligations it covers only those incurred before it.
Post-marriage contracts are dealt with separately by subsection (2), which neither creates nor removes liability but leaves the pre-existing law in place.
Paragraph (b) is the procedural half: the husband cannot be made a party to proceedings about these matters. Under the old law he had to be joined, because his wife could not sue or be sued alone — a rule section 2(c) has abolished.
Section 14(2) — the qualification
This Act does not —
(a) make the husband liable in respect of a contract entered into, or a debt or obligation incurred, by his wife after the marriage; or
(b) exempt him from liability in respect of a contract entered into, or a debt or obligation incurred, by her after the marriage — not being a debt or obligation arising out of the commission of a tort — in respect of which he would have been liable if this Act had not been passed.
Paragraph (a) confirms the Act creates no new liability for post-marriage contracts. Paragraph (b) confirms it removes none that existed at common law — except for tortious obligations, which subsection (1)(a) covers.
What survives under paragraph (b) is chiefly liability on the basis of agency: where a wife contracts as her husband’s agent, actually or ostensibly, he is liable as any principal would be. That liability arises from the agency, not from the marriage — which is why section 14(1) is confined to liability “by reason only of his being her husband”.
Similarly, where spouses contract jointly, section 3(b) makes them jointly liable — but as two contracting parties, not because they are married.
The other side of the coin
After her marriage a woman continues to be liable for (i) a debt contracted, (ii) a contract entered into, or (iii) a wrong committed, by her before her marriage — and for a sum for which she is liable as a contributory — and may be sued for any such debt or liability.
The creditor is not left without a remedy. What changes is who answers for the debt: the wife, under section 13, rather than the husband, under section 14.
That follows from section 2: a married woman who is capable of making herself liable and of being sued, and who is subject to insolvency law and to enforcement, is the proper defendant.
Section 1(2) extends the same treatment to liabilities for breach of trust or devastavit as a trustee, executrix or administratrix — and section 1(3) provides that the husband is not subject to those liabilities unless he has acted or intermeddled in the trust or administration.
What section 14 does not touch
Section 14 concerns liability to third parties for a wife’s debts and wrongs. It says nothing about obligations between spouses, or towards children.
Those are governed elsewhere:
- Section 17 of this Act — a married woman having separate property is subject to the same liability for the maintenance of her children as the husband;
- Section 108 of the Lukautim Pikinini Act 2015 — child maintenance; and section 109 — maintenance of a deserted spouse;
- Section 73 of the Matrimonial Causes Act (Chapter 282) — maintenance in a matrimonial cause.
Nor does section 14 affect a husband’s liability for his own debts, or the position where property was transferred between spouses to defeat creditors — see section 9(2), which denies validity, as against the husband’s creditors, to a gift that remains in his order and disposition, or to a deposit made in his wife’s name in fraud of his creditors.
Sources
- Married Women’s Property Act (Chapter 281) — ss 1–3, 9, 13, 14, 17
- Lukautim Pikinini Act 2015 — ss 8, 108, 109
- Matrimonial Causes Act (Chapter 282) — s 73
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.