PART III. he will still be entitled to the chose in ac TIT. I. CAP. I. SEC. II. tion as her administrator, and may in that capacity recover such things in action as became due to her before or during the coverture. (2 Bl. Com. 434-5; Co. Litt. 351. b.; Add. Cont. 760-1; Sm. Cont. 280-1.) On taking out administration to her estate, he will become entitled, as her administrator, to all her personal estate which was outstanding and unrecovered at her death. And if he does not take out administration to her estate, but some other person does, the husband will be entitled to any surplus which may remain after paying the wife's debts. If the husband dies before he or some other person has administered to her estate, his personal representatives may take out letters of administration to her estate, and recover all her property in action and unrecovered at her death, even though such property was reversionary at her death, and in fact did not cease to be so until after the death of the husband; as where he died in the lifetime of a prior taker of the property. But the personal representatives of the husband are trustees for the persons beneficially entitled to his general personal estate, under his will, or under the statutes of distribution, or under the statutes relating to bankruptcy, or otherwise, as the case may be, as to any surplus which may remain after paying the wife's debts. (See 1 Bright's Husb. & Wife, 36, 41-2, 72, 77-87; 1 Wms. on Exors. 339, 742; Drew v. Long, 22 L. J. 717, v.c.K.) PART III. TIT. I. CAP. I. SEC. II. tracts before Upon the marriage, the husband becomes Wife's conliable to the wife's ante-nuptial contracts. marriage. But on her death, his liability ceases, except as her administrator, unless judgment has been recovered against husband and wife in her lifetime. If he survives her, and takes out administration, he is liable to be sued on them, as his wife's administrator. If she survives him, her liability revives, in case nothing has been done to put an end to the contracts, during the continuance of the marriage. (Sm. Cont. 280-1; Add. Cont. 764; 2 Bright, 1-3.) suing on contracts made with married women. A husband may sue on a contract made Right of with his wife on good consideration. If he die without suing, the right to sue upon it will survive to the wife. (Sm. Cont. 285; Add. Cont. 761.) correction of The custody of the wife's person belongs to Custody and the husband. He has no right to chastise the wise. her; but he may restrain her liberty, in case of gross misbehaviour. (2 Ste. Com. 273.) PART III. TIT. I. CAP. I. SECTION III. Of Divorce, Annulling Marriage, and Before the new Divorce Act, there were two kinds of divorce: first, a divorce by the SEC. III. Ecclesiastical Court, a vinculo matrimonii, Divorce be- whereby the marriage was declared null, as Divorce Act. having been absolutely unlawful ab initio, fore the new The new Judicial and the issue, if any, became bastardised, and the parties were enabled to contract another marriage; secondly, a divorce a mensa et thoro, whereby they were merely separated, without annulling the marriage. Divorce a vinculo matrimonii could not be obtained from the Ecclesiastical Court for any post-nuptial cause, but was often granted, on the ground of adultery, by a private Act of Parliament. (2 Ste. Com. 285-7.) By the st. 20 & 21 V. c. 85, however, the jurisdiction of the Ecclesiastical Courts was transferred to the new Court for Divorce and Matrimonial Causes. This Court may, on the petition of either separation. husband or wife, decree a judicial separation, in lieu, and having the effect, of the divorce a mensa et thoro. (s. 7, 16.) Such judicial TIT. I. CAP. I. SEC. III. separation may be decreed on the ground of PART III. adultery, or cruelty, or desertion without cause for two years and upwards. The new Court may also grant a divorce or dissolution of Divorce. marriage, on the petition of the husband, upon the ground of the post-nuptial adultery of the wife; or, upon the petition of the wife, upon the ground that the husband, since the marriage, has been guilty of incestuous adultery, or bigamy with adultery, or rape, or unnatural crime, or adultery coupled with certain kinds of cruelty, or with desertion, without reasonable excuse, for two years or upwards. (s. 27.) But the Court may not grant a divorce if the petitioner has been accessory to or connived at the adultery, or has condoned it. And the Court will not be bound to grant a divorce, if the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has been guilty of unreasonable delay in presenting or prosecuting the petition, or of cruelty towards the other party, or of having deserted or wilfully separated from the other party, before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery. (s. 31.) PART III. SEC. III. Alimony. An order may be made for alimony to the CAP. I. wife, either on a decree for judicial separation on the wife's petition, or on a decree for dissolution of the marriage. (s. 17,32.) Alimony is an allowance made to the wife when cohabitation has ceased. It is either pendente lite or permanent. (Macq. 135, 141.) Appeal. Marriage after a Divorce. Annulling a marriage. On a decree for the dissolution of the marriage, a dissatisfied party may appeal to the House of Lords; but in case of no appeal, or in case of an appeal having been dismissed, or if the marriage is dissolved, either party may marry again. (s. 57.-See on this subject Macq. Law of Div. passim.) Marriages may be annulled by the Court. for Divorce and Matrimonial Causes, where they have taken place after a divorce obtained by fraud or collusion, or from a court not having competent jurisdiction; or where the parties are within the prohibited degrees of consanguinity or affinity, or both have acted in wilful disobedience of certain of the enactments as to the marriage ceremony; or where there was, in either of the parties at the time of the marriage, corporal incapacity, idiotcy, or lunacy; or where the marriage was the result of force or fear, not followed by voluntary cohabitation. (Macq. Div. 323-44.) |