Scottish Court of Session Decisions

Lord Chancellor (Chelmaford)—The trustee on the sequestrated estate of the appellant's husband brought this action seeking to have it declared that a provision in her favour, contained in a post-nuptial contract of marriage, whereby the trustees named therein were directed to make payment to her of the sum of £5000, had been re- voked by the sequestration of the estates of her husband—that such a provision was a donation by Dunlop in favour of his spouse made stante matrimonio, and being revocable by the husband, was therefore rovocable by the trustee. It will be observed that this action affects the reduction of the marriage-contract only in so far as it regards the payment of an annuity to the wife during the subsistence of the marriage. That is the only part impeached, and the only which any question arises. The Lord and all the learned Judges of the Second Division thought that, although in consideration of the provision that was made for her by the marriage contract, the wife surrendered her right to terce and other claims, her having done so did nevertheless not make this marriage-contract onerous. This unanimous decision of the Court below is objected to by the appellant, in the first place, because, as she maintains, this contract was execitted in discharge of a natural obligation. Now, there no an obligation both natural and legal on a husband to provide for his wife and family, but he is only bound to provide for them according to his ability. There is no obligation whatever upon him to divest himself of his property. On the contrary, it is his duty to reserve to himself the power of dispensing his means according to his discretion as a parent. It is next objectd by the appellant that this contract is onerous, because the wife thereby relinquished her right to the terce, and those other rights which would accrue to her upon the death of her husband. Such a relinquishment can furnish no consideration for this contract, inasmuch as those rights could not come into operation until the husband's death. The onerosity of the deed was, lastly, maintained upon the ground that it contained a provision for the aliment and education of the granter's children. But I agree with the Lord Ordinary in together the rovision in question was not one in favour of the children of the marriage. The post-nuptial contract in question set forth in its inductive clause that there had not been an ante-nuptial one, and that it was therefore proper and incumbent on him (George Dunlop) to supply that omission, and to make a suitable provision for his wife. The question being confined, my Lords, to the validity of this contract, only in so far as it provides for the payment of an annuity to the wife during the subsistence of the marriage, I am of opinion that the counsel for the appellant has failed to support his propositions, and I therefore advise your Lordships to confirm the judgment of the Court of Session.

Lord Romilly— I assent to the opinion expressed by my noble and learned friend on the woolsack. The principle of the Scotch law is that all donations between husband and wife are revocable. To that rule there are, however, two exceptions. The first is when a donation is made in pursuance of a natural obligation; and the second, when a consideration is provided. With regard to the first, a covenant the husband, as in the present case, to support his wife and family during the subsistence of the marriage, cannot he onerous, because the law already enforces that obligation upon him without regard to any contract; but a covenant that his wife shall be paid so much after his death is made in pursuance of a natural and legal obligation, and makes his contract onerous, since after his death the law cannot be enforced a against him. Upon the ground, therefore, that this is a provision for the wife to take effect during the subsistence of the marriage, I consider that it does not come within the first exception I have mentioned. As regards the other exception —viz., that there was a consideration for this provision made by the husband—I have only to remark that the rights which the wife surrendered were those which could only accrue by the death of her husband. I also concur that the childern of the marriage were not, according to this contract, the object of relief. I don't say that had the obligation of supporting the children of the marriage been thrown upon the wife by her husband's desertion, she might not have claimed to rank as a creditor on his estate, but with that question the contract has nothing to do.

Lord Colonsay—I concur with your Lordships. All the learning, acumen, and ability of Mr Horn — for which qualities those who have been accustomed to hear him know him to be distinguished — have failed to establish the propositions of the appellant. There is in the law of Scotland a clear distinction between ante-nuptial and post-nuptial contracts of marriage also an equally clear distinction between provisions between husband and wife which are to take effect during life and those which are to take effect after death. The argument of Mr Horn, were it to prevail, would go to entirely obliterate these distinctions. The doctrine of Scotch law is that all donations between husband and wife, stante matrirmonio are revocable. Circumstances may withdraw a particular case from the government of that principle; but those special circumstances I have failed to find in the present case. In all the cases which have been cited, wherein the rule which I have mentioned was held not to apply, there were those special circumstances. There was no consideration for the contract; and in so far as it referred to the children of the marriage, the rights which would have accrued to them on their father's death were not surrendered.