*CHAPTER IV.

[* 331]

THE NATURE AND EXTENT OF THE CONSIDERATION

OF MARRIAGE.

civil contract.

MARRIAGE has in all ages and countries been regarded, Marriage is a from a legal point of view, more or less as a civil contract, mutually entered into by a man and a woman, according to the solemnities for the time being required by the laws of the country to which they belong (p). The religious rites and observances which have generally accompanied the marriage have, even in Christian countries, seldom been necessary to the validity of the nuptials.

The canon law, indeed, from which our own law of Canon law. marriage is derived, regarded marriage more as an act of religion than of civil contract, but at the present day it may be validly celebrated either with or without any religious formalities. By the English law marriage is regarded merely as a civil contract (q).

The law, Blackstone says (r), "considers marriage in Law treats it no other light than as a civil contract. . . and taking like other it in this light the law treats it as it does all other con- contracts. tracts, allowing it to be good and valid in all cases where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and lastly, actually did contract, in the proper forms and solemnities required by law ;" and applies to it, with some exceptions, the ordinary principles which attach to other contracts (s).

It is a contract of a peculiar kind, which is entered Nature of the into "with a view not only to the benefit of the parties contract. themselves, but to the benefit of third parties, to the

(p) See Eversley, Dom. Rel. pp. 4 et seq.

(q) Shelford, Mar. & D. 17. As to the difference in England before and since the Reformation, see Hunt v. Hunt, 4 D. F. & J. 221, 227.

(r) 1 Bl. Com. 21st ed., 433.

(8) 2 Steph. Com. 8th ed., 238; 1 Broom, Com. 523; Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 62.

benefit of their common offspring, and to the moral order of civil society" (t).

*

It also partakes of the nature of a vow, which, though

* 332 entered into voluntarily, cannot be dissolved like other contracts by the mutual consent of the parties.

For these reasons, and with the view of enabling persons at this starting-point of a new family to enter into arrangements and settlements of property not to be easily overturned, the law gives to any contracts withregard to property into which the intending husband or wife or their friends on their behalf may enter at the Valuable con- time, the weight and security of a valuable consideration, and makes them binding, not only against the parties themselves, but against all other persons, to the same extent as if the settlement had been a conveyance made in consideration of the full value paid (u)

sideration.

By the civil law.

And the civil law allowed the same privileges to marriage portions as to other alienations on valuable consideration, and supported them in the hands of those who received without notice of the fraud (v).

Marriage the The consideration of marriage, said Lord Hardwicke, highest con- is "the best consideration that can be " (w). It is the sideration highest known to the law (x), and one which it is the policy of the law to give paramount force to.

known to our law.

Unless the marriage itself be a mere fraudulent contrivance for defeating creditors, the doctrine both at law and in equity has been to support a settlement of the husband's property when it appears to have been made previously to and in consideration of an honest marriage. Such a settlement will be upheld notwithstanding the embarrassed circumstances of the husband at its date, and even where the wife has contracted the marriage and obtained the settlement with a full

(t) Shelford, Mar. & D. 3.

(u) Assaby v. Manners, Dyer, 235 a; Douglasse v. Ward, 1 Ch. Ca. 99; Wheeler v. Caryl, 1 Amb. 121; Churchman v. Harvey, ibid. 340; Partridge v. Gopp, 2 Amb. 596; Reynell v. Peacock,2 Ro. 105, 2 Ro. Abr. 34, tit. Fraud; Raw v. Pote, 2 Vern. 239; Dilkes v. Broadmead, 2 D. F. & J. 566; Webber v. Farmer, 4 Bro. P. C. 170.

(v) Domat, book 2, tit. 10, sec. 1, par. 11.

(w) Townshend v. Windham, 2 Ves. 4.

(x) Ford v. Stuart, 15 Beav. 495, 499, S. C. reversed on a different point, 4 D. & J. 661.

knowledge of the husband's embarrassments (y). So it is only for very gross fraud, as when the marriage itself is a mere fraudulent device to defeat creditors, * that the consideration is not capable of sup- [ * 333 ] porting it (z), and will do so in some cases where the consideration of money actually paid would not avail.

Thus, although a debt of an ancestor is binding on Marriage his heir or devisee, a settlement by whom will be as settlement by much within the statute as if made by the ancestor heir or dehimself (a), yet, in the absence of any special circum- visee not stances, land, after alienation by the heir or devisee for ancestor's the purpose of a marriage settlement, is not liable to debts. the specialty debts of the ancestor of which there is full notice at the time of the settlement (b).

In Richardson v. Horton (c) Sir W. Horton, indebted by specialties binding his heirs, died, leaving an only daughter, his heiress-at-law and devisee of his real estate (subject to a life interest), and on her marriage, two years afterwards, a portion of the real estate was conveyed by deed to trustees to be sold to pay the debts, and the remainder of the real estates was limited to the use of the husband and wife and the issue of the marriage. The land so set aside proved insufficient, and the creditors claimed satisfaction out of the settled estates, but it was held that they were not entitled to payment thereout. The settlement, it was said, came within the proviso in favour of conveyances for good consideration and bonâ fide, for it was clearly for valuable consideration (the marriage), and, no mala fides being directly proved or expressly alleged, Lord Langdale, M.R., decided that it could not be inferred from the circumstances. The imputation of fraud merely rested on this-viz., that the parties to the settlement, knowing that there were debts of the testator remaining unpaid, and setting apart only a portion of the estates to provide a fund for the payment of those debts, settled the remainder, providing at the same time that the rents of the estate set apart for the payment of the

(y) Per Sir J. Stuart, in Fraser v. Thompson, 1 Giff. 49, 62; Kevan v. Crawford, 6 Ch. D. 29; ante, p. 91.

(z) Campion v. Cotton, 17 Ves. 263 a; ante, p. 89, as to the setting marriage settlements aside; and see Barrow v. Barrow, 18 Beav. 529; Bulmer v. Hunter, L. R. 8 Eq. 46.

(a) Gooch's Case, 5 Rep. 60 b; Apharry v. Bodingham, Cro. Eliz. 350; ante, pp. 165, 166.

(b) Mathews v. Jones, 2 Anstr. 506.

(c) 7 Beav. 112; Spackman v. Timbrell, 8 Sim. 253.

liable to

To what

debts should, until the estates were sold, be paid to the
husband. Since those estates had been sold, upon an
account taken after a lapse of about thirty years, dur-
ing which great fluctuations had taken place in the value
* 334] *
[
of the land, without one word said of ex-
planation, either as to the cause of the delay or the
cause of the defalcation which had taken place, the
produce of the land was found insufficient for the full
payment of the debts and the interest which had ac-
cumulated upon them.

So a settlement on marriage of leaseholds or other personal estate derived by will, if the bequest has been assented to, is good against the creditors of the ancestor (d).

Of course, if the marriage then contemplated does marriage con- not take place, the consideration wholly fails (e); and sideration till such marriage takes place, the contract is not exeapplies. cuted, and the trusts cannot come into operation. If, then, either the actual parties live together unmarried and have children, or if being within the prohibited degrees they go through the ceremony of marriage (ƒ), in either case the trusts created by the settlement can never come into existence, because the intention to provide for all their issue is defeated (g). Such contract can then be rescinded, and such trust put an end to (h).

Effect of

marriage on the personal property of wife.

Before the Married Women's Property Act, 1882 (i), all the unsettled personal property of the wife which accrued to her during the marriage became by the marriage the property of the husband and his creditors. If the husband's settled property was decreed to be restored to his creditors, there could be no restitution to the wife of her unsettled property, and she must lose it, as well as those rights under the settlement in consideration of which she parted with her own (k).

(d) Spackman v. Timbrell, 8 Sim. 260; Dilkes v. Broadmead, 2 D. F. & J, 566.

(e) Chapman v. Bradley, 33 Beav. 61, S. C. 4 De G. J. & S. 71; and see Coulson v. Alison, 2 Giff. 279, S. C. 2 D. F. & J. 521; post, pt. v. ch. iv.

(f) M Donnell v. Hesilrige, 16 Beav. 346; Essery v. Cowlard, 26 Ch. D. 191.

(g) Pawson v. Brown, 13 Ch. D. 202; see Dav. Prec. 4th ed. vol. 3, 11.

(h) Chapman v. Bradley, 4 De G. J. & S. 71; see Elph. Deeds, 331, 332.

(i) 45 & 46 Vict. c. 75, ss. 1 (1), 2, 5.

(k) See per Lord Hardwicke in Harvey v. Ashley, 3 Atk. 611, infra; Fry, Sp. Pf. 2nd ed. 415–416.

There are no doubt some cases in which the Court will set aside a settlement as to part of the property comprised in it. Lester v. Garland (1) is a case of that kind.

tion of

*But where there are reciprocal settlements [* 335] Peculiarity and the consideration of marriage occurs, it is neces- of considerasary to observe all the circumstances. Two things are marriage involved: there is the marriage itself, as it affects the that restitupersonal rights and duties and disabilities; there is tion is also the settlement, as it affects the property of both impossible. parties. In setting aside a settlement or conveyance made on pecuniary consideration as void against creditors there is no difficulty about restitution. The property is restored and the money repaid. Both parties are by the decree of the Court remitted to their previous position, and the settlement or conveyance set aside.

But when marriage is the consideration, restitution is impossible. Therefore it is that in the case of Cam- Campion v. pion v. Cotton (m), notwithstanding the strong circum- Cotton. stances shewing fraud against the creditors, the paramount value of the consideration of marriage supported the settlement. The circumstances of that case were very remarkable, for the settlement was made in order to withdraw the property from the creditors and secure a provision for the intended husband and wife at the expense of his creditors. He was greatly embarrassed, and the wife well knew his pecuniary difficulties. There was a false recital in the settlement that the stock settled had been purchased with her money. He had transferred into the name of his wife sums of stock not his own property, but the property of persons for whom he acted as broker. Notwithstanding all these circumstances, because the marriage was legally contracted the Court refused to set the settlement aside. The ground of the decision was, the paramount force and value of the consideration of marriage and the impossibility of restitution, from the nature of the marriage contract (n).

In Hogan v. Healey (o) a father gave a promissory

(7) 5 Sim. 205, in which a settlement of the husband's estate so that his life interest ceased on his bankruptcy was held good as to so much as was equal to the amount of the wife's portion which was not settled; post, p. 337.

(m) 17 Ves. 263, a; see Kevan v. Crawford, 6 Ch. D. 29; ante, p. 91. (n) Per Sir J. Stuart in Fraser v. Thompson, 1 Giff. 63.

(0) 11 Ir. Rep. C. L. 122; and see Johnston v. Johnston, 32 W R. 1016, S. C. 33 W. R. 239.