Subject_1 HUSBAND and WIFE. Subject_2 DIVISION XI.
Marriage Dissolving within the Year, all things are Restored hinc inde.
Subject_3 SECT. III.
Marriage presents. Expenses laid out during Marriage.
Waugh v. Jamieson
Date: 14 January 1679 Case No. No 384.
Marriage dissolving with in year and day, some pieces of plate and other things gifted by relations immediately after the marriage deliver ed to the wife, were found to divide equally betwixt the husband and wife.
Click here to view a pdf copy of this documet : PDF Copy
Smith and Waugh having been married together, shortly after the marriage, some gifts were given, as pieces of plate and the like, which were delivered to the wife; but the marriage dissolving within year and day, the question arose, to whom the goods did belong? It was alleged they did belong to the wife, because they were delivered to her, and the husband had no right thereto, but jure mariti, which failing by the dissolution of the marriage, these gifts remained with the wife, at least such gifts as were given by the wife's friends, behoved to belong to her; for seeing the donatars being partly friends to the husband, and partly to the wife, did not express whether they gifted to the husband or to the wife, but simply delivered the gifts to the wife, it must be presumed, that the wife's friends did gift to the wife, and the husband's friends to the husband; and accordingly the marriage being dissolved, the gifts of the husband's friends would belong to him, and the wife's to her; which the Lords, upon the first representation, sustained. But it was answered, That all dispositions to man and wife, resolving in a fee to the man, and a liferent to the wife, seeing these gifts were given after the marriage, and for the use of a family, they were not thereby in the wife's possession, though in her custody, but in the man's possession, who thereby became proprietor, and by the dissolution of the marriage, these gifts continued with him as proprietor thereof; at least the gifts being bestowed after the marriage, ought to divide equally betwixt the man and the wife, because they were then in a conjugal society, and the gifts must be presumed given to them as in that society; so that by the dissolution of the conjugal society, the husband and wife had equal share; for the dissolution of the marriage doth restore either party to what was theirs before the marriage; but as to what was gifted to them during the marriage, it was possessed by them in communione bonorum, as all their moveables would have been, if the marriage had continued year and day; and therefore, by the dissolution of the conjugal society, though within year and day, what was gifted during the marriage, without expressing on whose account, must be understood to be gifted to both the spouses, and to divide equally by the dissolution of the marriage.
The Lords found, that these gifts did equally divide betwixt man and wife, unless they were jocalia proper for the wife, being gifted after the marriage, and delivered to the wife, without expressing on whose account.
