Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HUSBAND AND WIFE-MINOR.
Subject_3 The Wife's Minority no ground for reducing a Postnuptial Contract of Marriage.

John and Ann Young
v.
Francis Robertson

Date: 24 January 1769

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By a postnuptial contract of marriage, between Francis Robertson and Elizabeth Young, the wife conveyed to her husband a sum of L.500 which had been left to her by her father; and he, on the other hand, made suitable provisions for her and the issue of the marriage. At this time they were both in minority. The wife having predeceased her husband, her representatives brought a reduction of the above contract on the head of minority and lesion. But the Court repelled the reasons of reduction. The following opinions were delivered:—

Pitfour. I doubt as to the validity of the marriage-contract. It is a postnuptial contract, whereby a husband, as curator to his minor wife, authorises her to make a, bargain with him. The law would have taken little care indeed of minors, if it had not taken this care of them. Wives under age would be injured in their family interests by such deeds; as, for example, if the wife died before majority, her heirs would be cut off without redress.

Kaimes. Although the husband and the wife enter into a contract, like the present, yet the husband does not act as curator. The only question is, Whether there is any lesion? I see none: every thing was fair and rational.

President. It is not only expedient but necessary that contracts like that in question be executed. For, how are settlements to be made in the case of minors marrying without a previous marriage-contract. This often happens from accident, and may from necessity. According to the argument here maintained, a minor marrying without a contract can execute none till she is of age, which is an event distant and uncertain. When a contract is executed in such circumstances, it cannot be otherwise executed than as in the present case. I deny that a wife is so far sub cura mariti as that every deed done by her and her husband must be held void and null. It would require more arguments than I have heard to convince me that a woman between 14 and 21 is incapable of making a settlement with her husband. There is no decision as to this, for the thing was never doubted. I know, by experience, that President Dundas and President advised a postnuptial contract of the same kind where a minor lady was concerned. They thought so little of the objection, that they saw no occasion to postpone the marriage for a day till a quorum of the lady's curators should be got to consent to an antenuptial contract.

On the 24th January 1769, “the Lords repelled the reasons of reduction,” and adhered to the interlocutor of Lord Stonefield.

Act. R. M'Queen. Alt. J. M'Laurin.

Diss. Pitfour.

Non liquet,—Strichen and Monboddo.