Scottish Court of Session Decisions

Section 3, sub-section 2, of the Married Women's Property Act 1881 provides that in the case of

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marriages which have taken place before the passing of the Act, “the jus mariti and right of administration shall be excluded. .. from all estate … to which the wife may acquire right after the passing of the Act.”

In July 1885 John Milne, fish-dealer, Aberdeen, raised an action of divorce for adultery against his wife Mrs Jessie Fraser or Milne, calling a man named Charles William Ballard as co-defender.

On September 1885 Mrs Milne raised a counter-action of divorce for adultery against Milne. In her condescendence she averred that her earnings were barely sufficient to keep her in life. In his answers he averred that since she left him she had been employed at high wages as a herring curer, in which trade she was very expert. He averred that she had saved not less than £15 during the herring season, and that she had since then been earning 5s. to 15s. a-day.

The Lord Ordinary conjoined the actions, and in the conjoined actions allowed a proof.

Thereafter on 19th November counsel for Mrs Milne moved the Lord Ordinary for an interim award of expenses.

The Lord Ordinary refused the motion, and refused leave to reclaim.

This note of his Lordship's ground of refusal was laid before the Inner House:—“Lord Fraser said he would not give an award of expenses in this case, and that he refused it upon two grounds. He thought that the foundation on which the practice of giving expenses to a wife rested had been altogether cut away by the Married Women's Property Acts. The practice rested upon this principle—that the wife had no personal estate. It was all swept away by the husband's jus mariti. No doubt, before the passing of the Married Women's Property Acts a wife could hold separate personal estate, but only in virtue of a deed by which the husband's jus mariti was renounced or excluded. In such a case she was bound to conduct a litigation with her husband like any other litigant, that is, at her own expense. The second ground for refusing expenses in the present case was, that although it was denied that the wife had means, there was a very specific statement of her earnings; and it should have been met by a distinct statement of these earnings, and not by a mere denial. It was clear from the statutes that if a wife had means she was bound to litigate at her own cost in every action.”

On same date Mrs Milne's agent wrote as follows to the agent of the pursuer:—“Dear Sir,—I beg to intimate that in consequence of the Lord Ordinary's decision to-day, and his refusal to allow an appeal, Mrs Milne, who is utterly without funds, does not intend to appear further in either of the actions.—Yours, &c.”

On 21st November proof was led in the husband's action, the wife not appearing. The Lord Ordinary pronounced decree of divorce against the wife, granting expenses to the husband against Charles William Ballard, the co-defender: “And having called the action at instance of the said Jessie Fraser or Milne against the said John Milne, in respect of no appearance for the said Jessie Fraser or Milne, assoilzies the defender John Milne from the conclusions of the said action.”

The defender Mrs Milne reclaimed, and argued that the Lord Ordinary was wrong in refusing her an interim award of expenses. The Married Women's Property Act only took effect when a woman had separate estate. It protected that estate, but it did not confer separate estate. Here all the wife had was her earnings, which were precarious. Earnings were not separate estate in the sense of the Act. The defender did not abandon her action; she merely stood aside from want of means to defend. She was entitled in the circumstances to be reponed, as she had no separate estate.

Authorities—Fraser, Husband and Wife, vol. ii. pp. 1130 and 1231; Married Women's Property Acts, 1877 (40 and 41 Vict. cap. 29), sec. 3, and 1881 (44 and 45 Vict. cap. 21), secs. 1 and 3; Dickson v. Dickson, February 17, 1841, 3 D. 559; Baxter v. Baxter, May 28, 1845, 7 D. 639; M'Gregor v. M'Gregor, July 8, 1841, 3 D. 1191; Gow v. Gow, February 21, 1855, 17 D. 471.

Replied for respondent—The defender abandoned her action by not appearing at the proof. The present application should be refused because it was incompetent, this not being a decree in absence; and further, the Lord Ordinary had refused this application on the merits, and the awarding of interim expenses was a matter entirely in the hands of the Lord Ordinary. Under the Married Women's Property Acts the parties here were independent persons, and the onus which formerly lay upon the husband in respect of his jus mariti was now by the operation of these statutes discharged. The wife here had separate estate, her own earnings, and was able to pay her own expenses.

Authorities— Tyre v. Ormiston, Hume's Decisions, p. 7; Stewart v. Stewart, February 27, 1863, 1 Macph. 449.