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Report No. 66

1.10. Equitable intervention with rules of common law and subsequent developments in England.-

We shall, in this connection, very briefly refer to the development in England1

(a) In England, the progressive emancipation of the married woman from the restrictions imposed by the Common Law upon her capacity to hold and to deal with real and personal property was, until the second part of the nineteenth century, almost exclusively the result of equitable intervention. At common law, a wife's chattels became the absolute property of the husband. He possessed also the power to reduce her choses in action into possession; whilst, upon the birth of issue, he enjoyed the seisin for life of such present estates of inheritance as his wife might have possessed, as a "tenant by the curtsey".

(b) From the reign of Elizabeth onwards2, however, the Court of Chancery steadily evolved the doctrine of the separate estate of the married woman, although it does not seem that this doctrine was applied to real property before the Restoration. In pursuance of this doctrine, the Court of Chancery established that wherever property was given to trustees for the separate use of a married women, she could hold and dispose of it in Equity free from her husband's interference; and such property was protected effectually against the husband's debts and other obligations. Eventually, it was decided that wherever the donor had expressed a plain intention that the property was for the separate use of the married woman, this should be effective, whether trustees had been appointed or not, the trust being, in the last resort, imposed on the husband himself.

It should be noted that it was not until the Legislature had accorded to a married woman financial independence from her husband that it was finally established that she had a similar right to her personal liberty. In R. v. Jackson, (1891) 1 QB 671 (Court of Appeal) the wife applied for a writ of habeas corpus against the husband, and it was held that it was no defence that the husband, was merely confining her to exercise a right of consortium. It was then that the concept that the wife is a chattel, came to an end.

(c) As a further development of the doctrine of separate property, Lord Thurlow, at the end of the eighteenth century, evolved the "restraint on anticipation" clause, the object of which was to protect the wife against the solicitations of her husband (or her natural inclination) to surrender her beneficial enjoyment of the property to him. Such a clause made either the capital or the income of property (or both) incapable of alienation or anticipation so long as she was subject to coverture, and the effectiveness of the clause was finally established before Lord Eldon in Jackson v. Hobhouse, (1817) 2 Mer 483.

(d) Nineteenth century statutes, whose purpose was carried a stage further in the property legislation of 1925, have now permitted the enjoyment of full proprietary rights by a married woman at law, and have therefore greatly minimised the importance of a very characteristic product of Equity, which only became possible through the evolution of the modern law of trusts.

(e) Under modern social conditions, however, the necessity for protecting a married woman against the designs of her husband has practically disappeared and, in spite of statutory provisions for lifting the restraint on anticipation on various occasions, it nevertheless remained a serious obstacle to the enforcement of the claims of the married woman's creditors. The Law Reform (Married Woman and Tort-feasors) Act, 1935, therefore abolished the "separate property" of a married woman, putting her in the position of a feme sole, and virtually prohibited the imposition of restraints on anticipation in the future.

(f) By the Married Women (Restraint upon Anticipation) Act, 1949, all existing restraints were abolished. Section 1(1) of that Act provides that "no restriction upon anticipation or alienation attached, or purported to be attached, to the enjoyment of any property by a woman could not have been attached to the enjoyment of that property by a man shall be of any effect after the passing of this Act."

1. For detailed discussion, see Chapter 2, infra.

2. Sanky v. Golding, 1579 Cary 86; Gorge v. Chansey, (1639) 1 Rep Ch 125; Darcy v. Chute, (1663) 1 Cas in Ch 21; Cotton v. Cotton, (1690) 2 Vrn 290.

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