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Report No. 66

5.9. Concept of restraint complementary.-

The concept of a restraint on alienation was, thus, complementary to that of the separate property of the married woman. Separate estate in equity did much to mitigate the harshness of the common law rule. But there was nothing to prevent a married woman from assigning her beneficial interest to her husband and thus vesting in him the interest which the separate use had sought to keep out of his hands, and the temptation presented to a grasping, spend-thrift or insolvent husband was real. It was to circumvent this, that equity developed the restraint upon anticipation.1

This restraint could be imposed only if property was conveyed, devised or bequeathed to a woman's separate use, and, once it attached, it prevented her from anticipating and dealing with any income until it actually fell due. A restraint could be, and usually was, attached to the corpus too, in which case the whole fund became completely in alienable during coverture. The restraint on anticipation was designed to protect not only the wife but also the members of her family who would be entitled to the property on her death.

1. See Hart The Origin of the Restraint upon Anticipation, 40 LQR 221.

Married Womens Property Act, 1874 Back

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