Section 12 of the Married Women’s Property Act (Chapter 281) turns ownership into something enforceable.
(1) A married woman has in her own name against all persons (including her husband) the same civil remedies for the protection and security of her own property as if she were not married.
(2) For the purpose of commencing a proceeding under this section, it is sufficient for a married woman to allege the property to be her property.
“Including her husband”
At common law spouses could not sue each other — the doctrine of unity of personality treated them as one person, and a person cannot sue themselves.
Section 12(1) abolishes that for property. A married woman may sue her husband for the protection and security of her own property, in her own name, on the same footing as she would sue a stranger.
That is what makes section 5 real. Property that belongs to her in all respects as if she were not married would be of little use if the one person most likely to interfere with it were immune from suit.
| Situation | Remedy |
|---|---|
| Husband or another person is detaining her property | Action for recovery; an order for delivery up |
| Property has been damaged or converted | Damages in tort |
| A disposal or dealing is threatened | Injunction restraining it |
| An investment in her name is being dealt with without authority | Relief on the basis of section 6(1), under which sole registration is prima facie evidence of beneficial entitlement |
| Title or possession is disputed between the spouses | Summary determination under section 15 |
Section 12(2) — a relaxed pleading rule
To commence a proceeding, it is sufficient for a married woman to allege the property to be her property.
Under the older law a married woman’s claim to property was tangled: she might have had to show that the property was held to her separate use, or that a settlement or equitable device existed to protect it from her husband.
Section 12(2) sweeps that away at the pleading stage. She need only allege that the property is hers. Whether it is remains to be proved — but she does not have to establish a special status before the door opens.
Two other provisions help her prove it. Section 6(1) makes an investment in her sole name prima facie evidence that she is beneficially entitled; and section 6(2) provides that an investment registered or transferred into her sole name shall, unless the contrary is shown, be deemed to be her property.
Section 18 — the legal personal representative
For the purposes of this Act, 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.
If a married woman’s remedies ended at her death, a husband or anyone else who had taken her property could simply wait. Section 18 prevents that: her executor or administrator steps into her position as if she were living.
The section works both ways — the representative has the same rights and the same liabilities, and is subject to the same jurisdiction. Her estate may sue, and may be sued.
That fits section 1(2), which extends the Act’s provisions on liabilities to breach of trust or devastavit committed by a married woman as trustee, executrix or administratrix, and section 1(3), under which her husband is not liable for those unless he has acted or intermeddled.
The limits of section 12
Section 12 gives remedies for the protection and security of her own property. It presupposes that the property is hers, and enforces that.
It does not allow a court to transfer property from one spouse to the other because that would be fair. That power belongs to the National Court in a matrimonial cause, under section 75 of the Matrimonial Causes Act (Chapter 282) — which section 4 of that Act denies to parties to a customary marriage.
Where the question is simply who owns what, the quickest route is section 15: either spouse may apply in a summary way to a Judge for an order declaring the title to, or right to possession of, the property, and the Judge may hear it in chambers if either party requires.
Note also section 9(1): the remedy runs in both directions. Where an investment was acquired by a married woman with her husband’s money, without his consent, a court may order it transferred to him.
Sources
- Married Women’s Property Act (Chapter 281) — ss 1, 2, 5, 6, 9, 12, 15, 18
- Matrimonial Causes Act (Chapter 282) — ss 4, 75
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.