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Report No. 66

7.2. Separate property-History of.-

It may be noted that the section uses the expression "separate property", which has now been abolished in England1. The expression has a history. In England, by the end of the 16th century2, it was established that if property was conveyed to trustees to the separate use of a married woman, then the married woman retained in, equity the same right of holding and disposing of it as if she were a feme sole. She could, therefore, dispose of it during her life or by will like any other beneficiary of full age who was absolutely entitled, and, like such beneficiary, she could call upon the trustees to convey the legal estate. Only if she died intestate in respect of her "separate estate" did the husband obtain an interest in her equitable property which he would have got had it not been settled to her separate use. This is the origin of the concept of "separate property".

1. Para. 7.3, infra,

2. Holdsworth History of English Law, Vol. 5, pp. 310-315.

Married Womens Property Act, 1874 Back

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