Report No. 66

5.8. Position in equity.-

But the wife could still be "morally influenced1" by the husband to dispose of her properties as he pleased. To avoid the exercise of such an influence the Courts of Equity allowed property which had been settled for the separate use of married woman to be so tied down for her own personal benefit that she should have no power during coverture to "anticipate" or assign her income. This is the origin of the restraint on anticipation. In Tullett v. Armstrong, (1839) 49 RR 290 (281), Lord Langdale, M.R., in discussing the validity of a clause in restraint of anticipation, observed as follows:

"The estate for separate use, as sanctioned by Courts of Equity, has its peculiar existence only in the married state. It operates as a protection to a married woman, against the legal power over the wife's property which is vested in her husband. It acts in contravention and control of the legal right of the husband, and as against his legal power, it is a sufficient protection; but the power of alienation remaining in the wife, the separate estate, unfettered, is no protection against the moral influence of the husband, and many instances have occurred and daily occur in which the wife under the persuasion or influence of her husband, has been and is induced to exercise his power of alienation in his favour or for his benefit, and thus defeat the protection intended for her.

"But, as the separate estate itself owed its origin and support to the Courts of Equity, it was understood, that the same Courts might so modify it, as to secure the protection which was intended; and accordingly it was intimated by Lord Thurlow that if a gift clearly expressed that the separate estate should be incapable of assignment in anticipation or of alienation that intention should be carried into effect, and his Lordship being of that opinion, himself set the example in a case in which he personally took an interest; and from that time, now nearly half a century ago, it has been usual to introduce into wills and settlements a clause giving to women real and personal estate for their separate use, independently of their husbands, without power of assignment, by way of anticipation or of alienation; and such clauses, though their operation has been considered to be, as undoubtedly, it is, anomalous and irreconcilable with the ordinary legal rules affecting the limitations of estates, and the legal incidents of property, have been repeatedly approved and carried into effect by this Court and settlements and provisions for family to a very great extent have been framed in reliance upon them.

"And in Jackson v. Hobhouse, (1817) 2 Mer 483: 16 RR 200 (203), Lord Elden emphatically declared that it was too late to contend against the validity of a clause in restraint of anticipation."

1. See Tullett v. Armstrong, infra.