Section 2 of the Married Women’s Property Act (Chapter 281) is the foundation of the whole statute.
A married woman is —
(a) capable of acquiring, holding and disposing of, property; and
(b) capable of making herself, and being made, liable in respect of a tort, contract, debt or obligation; and
(c) capable of suing and being sued; and
(d) subject to the law relating to insolvency and to the enforcement of judgements and orders,
as if she were not married.
What each paragraph does
| Para | Capacity conferred | The old rule it displaces |
|---|---|---|
| (a) | Acquiring, holding and disposing of property | Property vested in or was controlled by the husband |
| (b) | Incurring and being subject to liability | A wife could not bind herself; the husband was liable |
| (c) | Suing and being sued | The husband had to be joined as a party |
| (d) | Subject to insolvency law and enforcement | Judgments could not be enforced against her directly |
Capacity to hold property and incur liability would be hollow if judgments could not be enforced. Paragraph (d) makes a married woman subject to insolvency law — see the Insolvency Act (Chapter 253) — and to the ordinary machinery of enforcement.
Full legal capacity means being answerable as well as entitled. That is what “as if she were not married” requires.
The Act’s provisions on liabilities 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.
And the husband is not subject to any of those liabilities unless he has acted or intermeddled in the trust or administration.
That fits section 16, under which a married woman acting as executrix, administratrix or trustee has all the rights and is subject to all the liabilities without her husband, as if she were not married.
Sections 3 and 4 — husband and wife together
A husband and wife may —
(a) acquire, hold and dispose of property jointly or as tenants in common; and
(b) make themselves, or be made, jointly liable in respect of a tort, contract, debt or obligation, and of suing and being sued in tort or in contract or otherwise,
as if they were not married.
A husband and wife may exercise jointly a joint power given to them.
Under the old doctrine of unity of personality, spouses could not hold property as two persons — they were regarded as one. That made joint tenancies and tenancies in common between them conceptually awkward, and joint contracting impossible.
Section 3 removes the problem, expressly permitting both joint tenancy and tenancy in common. That matters practically: a jointly held State lease under the Land Registration Act (Chapter 191), or a joint bank account, is now unremarkable.
Section 4 does the same for powers — for instance a power of appointment given to a couple under a will or settlement.
The provisions that build on section 2
Section 5 — property belonging to a woman at her marriage, or acquired by or devolving on her, belongs to her in all respects as if she were not married.
Sections 6 to 8 — an investment in her sole name is prima facie evidence that she is beneficially entitled, and her husband need not join in a transfer.
Section 12 — she has, against all persons including her husband, the same civil remedies for the protection of her property as if she were not married.
Section 14 — the husband is not liable by reason only of being her husband for her torts or ante-nuptial contracts and debts.
Section 16 — she may act as executrix, administratrix or trustee without her husband.
Section 5(2) provides that section 5(1) does not interfere with or make inoperative a restriction on anticipation or alienation attached to a married woman’s enjoyment of property, and section 19(1)(b) preserves such restrictions in settlements, wills and other instruments.
A restraint on anticipation was a device intended to protect a married woman from pressure by her husband, by preventing her from selling or charging property or income in advance. See what a restraint on anticipation is.
Section 2 governs ownership. It says nothing about redistribution on the breakdown of a marriage — that is section 75 of the Matrimonial Causes Act (Chapter 282), available only in a matrimonial cause and, under section 4 of that Act, not at all for a customary marriage. Where the question is simply who owns what, the route is section 15 of this Act.
Sources
- Married Women’s Property Act (Chapter 281) — ss 1–8, 12, 14–16, 19
- Matrimonial Causes Act (Chapter 282) — ss 4, 75
- Insolvency Act (Chapter 253)
- Land Registration Act (Chapter 191)
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.