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for pin-money (as it is called (t) ), and also securing to her a further rent-charge for her life, in the event of her surviving her husband; which last allowance is by way of jointure (u), and is accepted in lieu of her dower. In return for this, if the lady possess a money portion, it is usually relinquished by her to the husband (x); but if the amount be large, he often secures the return of a part of it upon certain contingencies, to her family. If there be hereditary rank or title to be supported, or it be in contemplation to found a family, the deed also usually contains provisions for entailing the bulk of the landed estate on the issue of the marriage; which is commonly done by settling it upon the father for life, and, after his death, on the first and other sons successively in tail, and then on the daughters in tail.

A marriage settlement may be either in contemplation of marriage, or after marriage has taken place. The former kind, (or ante-nuptial settlements,) being made on what the law deems valuable consideration, viz. future marriage, cannot be impeached (except under circumstances of fraud) even by persons to whom the husband is indebted at the time; but are binding against all the world (y). A postnuptial settlement, on the other hand, is in general considered as voluntary (z), that is, made on no valuable consideration; and, if it relate to lands or tenements, is consequently, by the effect of the statute 27 Eliz. c. 4, void as against subsequent purchasers for valuable consideration, whether they purchase with notice of the settlement or not (a), the husband being allowed to defeat in this way his own previous gift. A post-nuptial settlement, whether relating to real or personal property, is moreover, by the effect of the statute 13 Eliz. c. 5, void as against all cre

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ditors to whom the husband was indebted at the time of the settlement, without possessing adequate means of payment; and also as against subsequent creditors, if he made it with the fraudulent view of defeating their future claims (b). But as against all others, a settlement after marriage, though voluntary in its nature, is effectual; and there are instances in which it is deemed not voluntary, and therefore valid as against all the world; as in the case where it is executed in pursuance of a written contract to that effect entered into before marriage (c), or as the condition of the husband's obtaining possession of property to which the wife was equitably entitled (d), or in consideration of an additional portion paid to him by her friends after the marriage (e).

2. With respect to arrangements for separation.

Although the law looks with great disfavour on any agreement the object of which is to relieve from the duties and obligations arising from the conjugal relation, yet where the husband and wife have actually come to a resolution to live separately, the courts, both of law and equity, have in many cases recognized the validity of agreements made for the purpose of carrying this resolution into effect (f).

This is usually done by the husband's covenanting with trustees appointed on behalf of the wife, that he will provide certain sums for her separate maintenance, the trustees covenanting in return to indemnify the husband against the debts of the wife, and that she shall release all claims of jointure and dower. The deed also contains in general

(b) See Walker v. Burrows, 1 Atk. 93; Stileman v. Ashdown, 2 Atk. 481; Kidney v. Coussmaker, 12 Ves. 156; Holloway v. Millard, 1 Madd. 421; Shears v. Rogers, 3 Barn. & Adol. 363.

(c) Doe v. Rolte, 8 Ad. & El. 650; Doe v. Rowe, 4 Bing. N. C. 737.

(d) Wheeler v. Caryl, Amb. 121.

(e) Russell v. Hammond, 1 Atk. 13; Wheeler v. Caryl, ubi sup.

(f) See Westmeath v. Westmeath, Jac. Rep. 126; Jee v. Thurlow, 2 Barn. & Cress. 547; Wilson v. Mushett, 3 Barn. & Adol. 752; Jones v. Waite, 1 Bing. N. C. 656 ; Gustom v. Nankum, 2 De G. & Sm. 261; Sanders v. Rodway, 22 L. J. (C. C.) 230.

a clause in which each party covenants not to molest or interfere with the other, and not to sue for the restitution of conjugal rights. Under such an agreement, the wife is entitled to receive her separate allowance, so long as the separation continues, and while she observes the covenant on her part, in the deed contained; and she does not forfeit that claim even by the commission of adultery (g).

It is to be observed, however, that though the law allows provision to be made for a separation already determined on, yet it will not sanction any agreement, the effect of which is to provide for the contingency of a future separation at the pleasure of the parties,-because this has a tendency to promote that event, contrary to the manifest policy of the law (h). It is also to be understood, that a married woman, though thus separated from her husband, is not thereby divested, in any other respect, of the condition of coverture (i).

III. We are next to consider the manner in which marriage may be dissolved. This may be either by death or divorce. Prior to the new Divorce Act, 20 & 21 Vict. c. 85, there were [two kinds of divorce; the one, à vinculo matrimonii; the other, merely à mensâ et thoro.] The divorce à vinculo was founded on such canonical disability as already described (k), and was to be obtained from the Ecclesiastical Court. By the sentence, the marriage was declared [null, as having been absolutely unlawful ab initio,] and the parties were therefore [separated pro salute animarum (1)]; and by the effect of the sentence the issue became bastards (m); and the parties were at liberty to contract another marriage (n). Divorce à mensâ et thoro was

(g) Jee v. Thurlow, 2 Barn. & Cress. 547; Baynon v. Batley, 8 Bing. 256.

(h) Durant v. Titley, 7 Price, 577; Hindley v. Marquis of Westmeath, 6 Barn. & Cress. 200; Cocksedge v. Cocksedge, 14 Sim. 244.

(i) Marshall v. Rutton, 8 T. R.

545.

(k) Vide sup. pp. 251, 256.
(7) 1 Bl. Com. 440.

(m) Ibid.; Co. Litt. 235.

(n) Moore, 666; Stephens v. Totty, Cro. Eliz. 908.

the remedy where the marriage was lawful ab initio ; but from some supervenient cause it became improper for the parties to live together, as in the case of intolerable cruelty in the husband, adultery in either of the parties, a perpetual disease (o), or the conviction of the husband for an unnatural offence (p). It was from the Ecclesiastical Court that this kind of divorce also was to be obtained. But it could not be obtained by the husband, as for adultery, if the wife recriminated and proved that he also had been unfaithful to the marriage vow, or if it appeared that after knowledge of her adultery he had cohabited with her (g). The sentence for this divorce, though it effected the separation of the parties, did not annul the marriage, and it was therefore essentially different from the divorce à vinculo. By its effect the wife, if the innocent party, generally became entitled to alimony (r), that is an allowance [for her support out of the husband's estate, being settled at the discretion of the ecclesiastical judge on consideration of all the circumstances of the case,] and generally [proportioned to the rank and quality of the parties (s).] But the law allowed no alimony to the wife, in case the divorce was obtained for adultery on her part, nor in case of her having from other sources a sufficient income (t).

The divorce à vinculo could not be obtained for any cause supervenient upon the marriage; for the canon law, which the common law followed in that respect, [deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause

(0) 1 Bl. Com. 441 ; 3 Bl. Com. 94. Blackstone refers also to "intolerable ill-temper," as another sufficient cause. But see Evans v. Evans, 1 Hagg. 36; Coleridge's Blackstone, vol. iii. p. 441, n. (g).

(p) 3 Bl. Com. 94, note by Christian.

(g) 1 Ought. 317; Burn, Eccl.

Law, Marriage, xi.

(r) 1 Bl. Com. 441; 3 Bl. Com. 94. Blackstone remarks that this was sometimes called her estovers, for if the husband refused payment there was a suit at common law de estoveriis habendis to recover them. (s) Ibid.

(t) Ibid. Cowel, tit. Alimony.

[whatsoever that arises after the union is made. And this is said to be built on the divine revealed law (u); though that expressly assigns incontinence as a cause (and indeed the only cause) why a man may put away his wife and marry another (x).] Adultery was therefore, with us, [only a cause of separation from bed and board (y).] But though this divorce could not be obtained in the regular course of law, on the ground of adultery, yet it was very frequently granted on that ground, by a private Act of Parliament; it having become the practice of the legislature to exercise its paramount authority in this manner, by way of extraordinary relief to the injured party.

By the new Divorce Act, however, this former state of the law has been just subjected to changes of a fundamental and most important character. Not only has the jurisdiction of the Ecclesiastical Courts in causes matrimonial been taken from them and transferred to the new Court for Divorce and Matrimonial Causes, but many new provisions have been introduced into this branch of the law; the main effect of which may be summarily stated as follows. The Act provides,—

1. That, in lieu of the divorce à mensâ et thoro, the new court may decree, on the petition either of husband or wife, a judicial separation; which shall have all the effect that belonged to the divorce just mentioned; and that the same relief may also be obtained by petition to any judge of assize for the county in which the parties last resided together (z): that this judicial separation may be decreed on the ground of adultery, or cruelty, or desertion without cause for two years and upwards (a); and that by its effect

(u) See Matt. xix. 9. (x) 1 Bl. Com. 441.

(y) Ibid. Moore, 683; Bac. Ab. Marriage, E. 3. Antiently, however, adultery was held cause for divorce à vinculo, (3 Salk. 138.) But the law was otherwise settled in Foljamb's case, 44 Eliz. in the Star

Chamber.

(z) 20 & 21 Vict. c. 85, ss. 7, 17. The judge of assize may refer the petition to any queen's counsel or serjeant-at-law on the same commission.

(a) Sect. 16.

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