The Married Women’s Property Act (Chapter 281) describes itself as an Act relating to the capacity, property and liabilities of married women.
At common law a married woman had almost no independent legal existence. Her personality was said to merge with her husband’s: property she brought to the marriage, or acquired during it, passed to or was controlled by him; she could not contract in her own name, could not sue or be sued alone, and her earnings were his.
This Act ends that. Its central provision, section 2, makes a married woman capable of acquiring, holding and disposing of property, of incurring liability, and of suing and being sued — as if she were not married.
That phrase, or a variant of it, appears in sections 2, 3, 5, 12 and 16. It is the whole idea of the statute.
The twenty sections
| Sections | Subject |
|---|---|
| 1 | Interpretation — “contract”, “the insured”, “investment”, “policy of assurance” |
| 2–4 | Capacity; joint liability of husband and wife; joint powers |
| 5 | Property of a married woman |
| 6–9 | Investments — sole names, joint names, transfers, investments made with a husband’s money |
| 10–11 | Policies of assurance; moneys payable under a spouse’s policy |
| 12–14 | Remedies; ante-nuptial debts; the husband’s liability |
| 15 | Summary determination of questions as to property |
| 16–18 | Executrix or trustee; maintenance of children; legal personal representative |
| 19–20 | Settlements; costs out of property subject to a restraint on anticipation |
Section 1 — the definitions that matter
It includes deposits in a savings bank, building society, banking company or joint-stock company; annuities; sums forming part of public stock or funds or other transferable stocks; shares, stocks, debentures, debenture stock or other interests in a corporation, company, public body, or an industrial, provident, friendly, benefit, building or loan society; land registered under the Land Registration Act (Chapter 191), or an estate or interest in it, or a mortgage, charge or other security over it; and lands held under any other law relating to land.
“Contract” includes the acceptance of a trust or of the office of executrix or administratrix.
“Policy of assurance” means an instrument by which payment of moneys out of an insurance company’s funds on a contingency depending on the duration of human life — by way of life assurance, endowment, annuity or otherwise — is assured or secured.
Because it includes registered land, the investment provisions in sections 6 to 9 apply to a State lease or other Torrens title. A married woman registered as proprietor is prima facie beneficially entitled, may deal with it without her husband’s concurrence, and her husband need not join in any transfer.
Note also section 1(2) and (3): the Act’s provisions on the liabilities of married women extend to liabilities for breach of trust or devastavit committed as a trustee, executrix or administratrix, before or after marriage — and the husband is not subject to those liabilities unless he has acted or intermeddled in the trust or administration.
The Act in the modern scheme
Unlike the Matrimonial Causes Act (Chapter 282), whose section 4 excludes customary marriages entirely, nothing in this Act draws that distinction. It speaks simply of a married woman — and section 3 of the Marriage Act (Chapter 280) gives a customary marriage full validity.
It also operates independently of any divorce. Section 15 allows a dispute between husband and wife about title to or possession of property to be determined summarily by a Judge, without any matrimonial cause — a route available where section 75 of the Matrimonial Causes Act is not.
The two Acts do different things. This Act settles who owns what according to ordinary property law. Section 75 of the Matrimonial Causes Act empowers the National Court to redistribute property between spouses on a divorce, as it thinks just and equitable.
Section 17 also carries a duty that survives: a married woman having separate property is subject to the same liability for the maintenance of her children as the husband — consistent with section 8 of the Lukautim Pikinini Act 2015 and with Basic Social Obligation (h) of the Constitution, which places an equal obligation on parents to support their children.
Sources
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.