A Commentary upon the Married Women's Policies of Assurance (Scotland) Act, 1880

Abstract

In the present lecture I propose, in deference to a suggestion emanating from your Society, to discuss the Married Women's Policies of Assurance (Scotland) Act, 1880 (43 and 44 Vict. c. 26). The Act, as you are no doubt aware, is quite a short one, consisting of two clauses: one of which empowers a married woman to effect a policy of assurance on her own life or that of her husband for her separate use, while the other empowers a married man to effect, by means of a policy of assurance over his own life, a trust for behoof of his wife, or family, or both. In both cases the object is similar—to protect the sum assured against the husband and his creditors. Now it is impossible to appreciate the necessity of attaining this object, and the changes wrought in the law by the effort of the statute to secure it, without some knowledge of the previously existing rights of husband and wife respecting property and contracts, and of the rights of the wife and children under postnuptial contracts and declarations of trust by the husband. Such knowledge, in a non-legal assembly, I am scarcely entitled to assume. And before I deal with the text of the Act, I accordingly propose to give a brief sketch of the general common law rights above referred to, and to note the results of the cases decided on the special rights of the spouses and children with respect to policies of assurance effected on the life of either spouse. So stated, my task is not a particularly easy one. The rights and disabilities of the wife were never very clearly defined, and of their somewhat vague and unsatisfactory nature the cases on policies are typical illustrations, while the Act itself, though it involves many points of difficulty, has been subjected to very little judicial interpretation since it passed. Its provisions are, indeed, very similar to those of Section 10 of the English Married Women's Property Act, 1870 (33 and 34 Vict. c. 95), which was replaced by Section 11 of the Married Women's Property Act, 1882 (45 and 46 Vict. c. 75); and upon both of these sections there have been a considerable number of decisions, which I shall refer to, if not as direct authorities, at any rate as important illustrations and analogies in discussing the Scots Statute. But even when allowance is made for this, any detailed commentary on the Act must necessarily be of a somewhat speculative character.