DIVORCED WOMEN AND PROPERTY.
AN ugly scramble after property is no very uncommon sequel to the termination of a marriage by death, but there is room for a much more disagreeable struggle when a marriage is ended by a divorce. In the one case a woman may be competing with her husband's relatives,—and that is bad enough ; in the other, the competitors are the ex-wife and the ex-husband themselves, embittered against each other by the exposures and the excitement of a litigation, and the unpleasant circumstances which gave rise thereto. The Court, no doubt, settles all important questions which arise between them, but there are minor matters in plenty about which they can go to war, and these are just the sort of matters as to which women are apt to feel deeply, and to be de- termined to assert their rights. Women, as we all know, are unselfish creatures, but they are also dependent creatures, and can do little for themselves, and no doubt this explains what is the general experience of men of business,—that they are less reasonable and harder to manage in money matters than men. Enlightened by those paid protectors of the defenceless, the solicitors, they develop an aptitude for extracting what is theirs to the uttermost farthing, but some strange instinct makes them, if anything, more exigent in little matters than in great. Of course, they should have what is their due, great or small; and in small matters the law has been more considerate for them than most husbands have any idea of. Husbands are apt to feel that to snake presents to their wives is—even apart from the pleasure of making them—no great stretch of generosity, having a rooted belief that they have parted with nothing, that there has been only a formal and com- plimentary transference, that all their wives possess which is not secured by settlement is by law their own. That is the Common- law theory, but a Manchester ex-husband has just learned, by a disagreeable experience, that Courts of Equity recognise limita- tions of it. Mr. Augustus Bolick, having been divorced by his wife, broke up his establishment and retired to the Continent, selling to a Mr. Mann all the contents of his house, including a number of articles claimed by his wife. Notice of the wife's claim was given to Mr. Mann before he completed his purchase, and he got the husband's guarantee that none of the things sold were hers; but he found himself, nevertheless, obliged to give up to her a miscellaneous collection of articles,—pictures, ornaments, lace, tea and dinner services,—presents made to the lady by relatives and friends, and by her husband in the days before events divided them. He drew the line at a landau and pair, with silver-mounted harness, valued at 2,500, which had been a birth-day present to Mrs. Bouck from her husband ; but these, too, the Liverpool Court of Chancery has ordained him to surrender, or, what is the same thing, to pay the value of. Vice-Chancellor Little's decision in the case has been spoken of as if it Were something new, but the rule applied by him was firmly settled so far back as Lord Hardwicke's time. The question in the case was purely a question of fact. Had Mr. Bouck or had he not given the things in question to the lady to be absolutely her own, to do what she liked with them? If he had, then they were unquestionably hers for her separate use, could not be taken back by her husband, could not be attached by his creditors, while she was as free to do what she pleased with them as if she had been a feme sole. It is plain that Mr. Bouck did not know he was acting so gener- ously, and that he would have been immensely astonished had his wife sold instead of using them ; but the Vice-Chancellor held that there had been an unconditional gift, and when he had done so, there could be no further question. The result of the case is a liter hard on Mr. Mann, even if he have not to suffer pecuniarily, but he has only undergone what all may look out for who come between husband and wife whom the Divorce Court has parted.
The property not secured by settlement, nor taken under the conditions of a will, nor secured in terms of the Married Women's Property Act, to which wives are entitled independently of their husbands, is seldom, it must be admitted, of much value ; and it consists more often than not of articles to which asso- ciation has given a value beyond their intrinsic worth. A married woman's paraphernalia,—her apparel, and orna- ments worn by her suitable to her rank—when they have been given to her by her husband, remain his to sell or to give away, and may be taken by his creditors ; but, though he can give them away, he cannot dispose of them by will ; at his death, subject to the claims of creditors, they are his wife's, and if he has pledged them—though he might have sold them outright— his estate must take them out of pawn. Presents of the nature of paraphernalia made to a wife, whether before or after marriage, by relatives and friends, are hers, for her separate use, and gifts made to her unconditionally by her husband during the marriage, not to be used for purposes of adornment merely, are similarly her separate property. If the credit of his establishment, how- ever, was clearly part of a husband's motive in making a gift, that purpose is not disregarded ; it implies a condition that the thing given shall not be parted with, but kept for use or show, and therefore the thing given does not pass to the wife. The doubt which existed in Mr. Bouck's case must have been whether there was not such a condition, and this doubt, fortunately for the lady, Mr. Little resolved in her favour. A married woman is also entitled to savings out of her pin-money and what she has bought with it ; and that itself, when secured by agreement before marriage, she can maintain against her husband's creditors. At one time, it was held that a wife's savings out of her allowance for housekeeping, when left with her by her husband, were hers; but now there must be some clear and distinct act, as the conveyance to a trustee or in- vestment in the wife's name, whereby the husband's intention is unequivocally shown, to give her a right to such savings. Whether- they should or should not be encouraged is clearly a matter admitting of argument, but it is to be feared the question does. not very often wise in these days, at any rate among dwellers in towns. Property given to a husband for his wife's separate use is also hers without any trust, or rather, the husband holds it in trust for her, and she can make good her right to it against his creditors. When the rules above set forth were laid down, matrimony was a more stable thing than it now is; now, it is- plain that they may give rise, on the break-up of a household, to. as much litigation, and that of an envenomed kind, as if they involved interests of the wife a hundred times more important than those which are actually concerned in them. Mr. Mann probably gave up a multitude of things which the law would have allowed him to keep, but he might have found himself in- volved in a difficult question of evidence about nearly every article claimed from him, and he did wisely in contesting only- -the matter in which a substantial interest was at stake.
Really, in respect of property, the Courts have done far better by married women than from the complaints often heard might be supposed. Equity came to their relief ages before women's rights were heard of, almost as soon, indeed, as individual women besought its aid. The matters already spoken of show- only a trifling part of what it did in their favour. Once it had introduced the doctrine of separate use, which in its time was almost a revolutionary innovation, it steadily broadened its application, until at length, through that hater of middle,„ courses and unsatisfactory distinctions, Lord Westbury, it laid - down that, in respect of property settled to her separate use, a married woman is in all respects, as to power of disposal inter vivos or by will, precisely in the position of a feme sole. The Protection Order provided by one of the Divorce Acts for women deserted by their husbands, and the Married Women's Property Act of 1870, with its strong provisions for the protec-
tion of women's property, were simply deductions from what the Court of Chancery had long before done, and were applications of its principles, which, had it retained its pristine vigour, it would not have shrunk from making. It is better that changes of importance should be made by the Legislature than by a Court, but it is interesting to note that, as regards women's rights, the Court of Chancery was far ahead of public opinion, instead of lagging behind it. It is not, however, surprising that Chancellors should now and then have been more enlightened than the Legislature of their time, or the general opinion of their time ; and "hard cases," which make bad law, but which often gave equity its opportunity, almost compelled them to modify the Common Law as to women's property in the direction of justice and humanity. Had they foreseen what their humane intervention would have led to, per- haps some of them would have steeled their hearts, and let the rigour of the law prevail. A married woman is now as an un- married woman in respect of her separate property, secured to her by settlement or by law,—it is inevitable that she shall be so by-and-by in respect of all that is or may become hers without any precaution taken. And this involves a change so consider- able in the relations of married people, that even now people shrink in thought from the consequences which may spring from it. The notion of justice to which we have attained, however— though what we think justice would a generation or two ago have been deemed the most impolitic folly—requires that women should lose no right to property in consequence of marriage, and what is deemed to be justice is sure to prevail, be the consequences what they will.
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