When any arrangement has become matter of routine, it ceases with surprising rapidity to be matter of discussion. It becomes part of the regular established course of affairs to which every one submits in his turn, and even if an occasional grumble is heard, the disinclination to take the trouble of considering the matter on principle is so great and general, that until attention is drawn to it by some special instance of individual hardship, or by some speculation which happens to attract notice by its form or power, matters go on as they are for an incalculable time. This is especially true of all customs which are in any way connected with the law. Customary ways of living, customary ways of conducting business, customary prescriptions in medicine, that collection of customs, as to dress, food, &c., which collectively constitute fashion, and a thousand other customs of the same kind, flourish and fade with a certain degree of quickness. Sometimes they are transitory enough to lead people to speak of their caprice and instability as if these were their most characteristic features, the truth being that they change within a narrow range only, and vary very little indeed beyond that circle. When the law comes in, the strength of custom appears in its full light.
Law is a difficult thing to learn. Men feel a kind of pride in its intricacy when they have learnt it, just as they might in any other out-of-the-way piece of knowledge. Moreover, the law is like the sea. The Atlantic Ocean is an immense place, and might be traversed by ships in any direction; but, in fact, there are but a few narrow bands of it which are so traversed, and the rest is left almost entirely unvisited. So with law. There are millions of actions which are perfectly legal, and millions of arrangements of every sort which people might make if they pleased. There are, however, a very small number of courses which the law actually, and as a matter of fact, has recognized as legal, and of which the legal consequences are thoroughly well known and ascertained. Those few courses of conduct are accordingly followed on all occasions, and whenever the necessity arises for performing any one of the acts to which they relate, the appropriate way of doing it is thoroughly well ascertained, and is as rigidly prescribed by legal custom, as it could be by legal enactment.
These observations are peculiarly appropriate to the case of marriage settlements; When two people are engaged to be married, the business part, of the matter is, according to the ordinary phrase, “put into the hands " of a solicitor, or perhaps two, as the case may be, and by them a little private code of laws is drawn up, which no power on earth, short of Parliament, can repeal or alter, which is to regulate some of the most important affairs of the family for a whole generation—during the joint life-time of the persons to be married at least, and possibly for a much longer period. This document is, as a rule, prepared with but little attention to the particular circumstances of the parties, according to certain forms which happen to have come into fashion for such purposes, and which are so managed as to leave those who have to be guided by them singularly little choice as to the course to be taken. The common course where people marry who have money enough to want to have a settlement, and who are not great landed proprietors, is to convey the property to be settled to trustees, who are to invest it either in land, in funds, on mortgage or railway debentures (which is a sort of mortgage), and sometimes in other specified securities, to pay the interest to the husband for life, or sometimes, in the first instance, to the wife for her separate use, with survivorship to the husband, then to the wife for life, and after their death to pay the capital to the children of the marriage on their majority or marriage equally or in such shares as the parents or surviving parent shall appoint; if there are no children, each party can usually dispose by will of his or her share, and if there is no will, the property is generally given to his or her family. This is the substance of the document, though, by the introduction of all manner of clauses about the appointment of new trustees, the way in which land in settlement is to descend, &c., it is usually swollen to an enormous size, and a price most unsatisfactory to those who have to pay it.
This kind of domestic legislation has become so common, indeed so nearly universal among the comfortable and moderately wealthy classes, that it is insisted on as a matter of course, as a precaution of ordinary prudence, whenever a marriage takes place in those classes. It is as much a part of the business as the wedding breakfast, or anything else connected with the transaction. It has, indeed, become so much a matter of course, that probably very few of the parents whose daughters are married in the course of the year, and not very many of the husbands who marry them, think of the expediency of the arrangement at all, or consider it an open question whether or not the contract is one which ought to be made. Common, however, as it may be, it is not by any means altogether clear that it is wise. It would be rash to give a peremptory opinion as to what ought to be done in such cases, but it may be interesting to consider some points connected with the subject, which are very often passed over unnoticed.
In the first place, it ought to be observed, that every settlement whatever is an evasion of the law of the land. The law is, that, upon marriage, 'the husband becomes absolutely entitled to his wife‘s personal property, and entitled to the profits of her real property for her life, or, if a child is born alive of the marriage, for his own life. On the other hand, the wife is entitled to a third of his land for her life, and on his dying intestate, she takes a part of his personal property, varying according to the state of his family. The law as to dower has practically been rendered obsolete by Acts of Parliament and conveyancing subtleties; but, as regards personal property and the real property of the wife, it is still in full force. Such being the law, it is obvious that every marriage settlement evades it, to the prejudice of the husband. Instead of getting his wife's property absolutely, he gets at best only a life-interest in it. Hence the law of the land and the tenor of marriage settlements stand in direct opposition to each other. If one is right, the other must be wrong. Whether either or neither is right is a curious inquiry, on which a few observations will be offered immediately, but the inconvenience of having an opposition between them is not the less real because itis not generally noticed. It consists in the fact that it converts the ordinary course of things into a set of exceptions to a general rule, and the objection to this is that, except in the cases where an exception is made in express words, the general rule applies, often in a most vexatious and mischievous manner. In the early part of Delolme‘s account of the English Constitution, the author (by birth 'a foreigner) remarks that during the early part of his residence in England he was constantly at a loss to understand how English people made out their right to do this, that, and the other thing, which, as a general rule, people were not allowed to do on the Continent. At last he discovered that in England people could do what they pleased, unless there was some express law to prevent them; whereas, as he said, in the continental countries with which he was acquainted, the converse was the case. Whatever may be the case in political affairs, there are many domestic relations in which the exception has become the rule, and the rule has become a mere pitfall to trip people up who have not taken proper care to bar it out in the particular instance. This is the real reason why the law relating to land is so inconceivably complicated, and why its administration is so expensive. In fact, land is, in practice, as much the absolute property of its owner as money. In theory, no subject owns land. All the land in England is held either of the Queen or of some inferior lord, and in order to understand the technicalities which attend a sale of land, it is necessary to know more or less of the history of the old rules, and of the exceptions nearly co-extensive with them, which have been provided by a long succession of legislatures. If a person is ignorant of these strange subtleties, his title may be endangered, his estate may be lost, or the intention of his will may be defeated, because of some reason, which may, perhaps, have had some force in it five hundred years ago, but which no one in the present day can even understand without a special education. To evade a bad general rule by exceptions nearly co-extensive with it, instead of substituting a reasonable rule, is as if a man, wanting for a particular reason to shut up his house, were to build up the front door, and, instead of re-opening it when the reason ceased to apply, were to construct an elaborate system of ladders, by which you might creep out of the garret window, crawl along the gutter of the roof, descend to the cellar, and come up through the hole where the coals are let in. Such a contrivance would, no doubt, let you into the street at last. It might display a great deal of quaint ingenuity, and it is even possible that it might here and there have an incidental convenience; for instance, at some particular point, it might improve the ventilation of the house, but any sensible man would open his front door at once, instead of repairing the steps of the ladders, making the handrail by the gutter a little stronger, and enlarging the entrance to the coal-cellar.
To apply this to the particular case of marriage settlements, it is obvious that the general law which regulates the effect of marriage on property was established at a time when the whole state of society was different from that in which we live. Land was then the great source of permanent income, and personal property was composed for the most part of agricultural produce, articles of furniture, and ready money. Such things as investments, in our sense of the word, were almost unknown. There were no public funds, no railways; a mortgage was rather an interest in land than a. debt secured on land; indeed, the notion of living on the interest of one's money was associated, not with quiet people receiving dividends with mechanical regularity, but with Jews and usurers squeezing the last farthing from their victims. In such a state of things, it was natural enough to give the husband an absolute title to his wife’s personal property. When he took her home to his house, he would, of course, take with her a certain quantity of furniture, plate, money to spend, possibly cattle, and other things; and, being the head of the family, would of course have the entire control over them, and so become their owner in virtue of his marriage. But does the fact, that in a very rude state of things such an arrangement would be natural, supply any reason for providing that when a man marries a woman who has £5,000 a year from the funds, he ought to become the absolute owner of the £5,000 a year, because early lawyers chose to put money debts and pots and pans in the same category, as being both personal property? The solid distinction was not between moveable and immovable property, but between property which supplied a permanent means of livelihood, and property which was liable to be consumed in the act of using it. There would be some sense in saying, the husband shall enjoy the wife’s income for life, and shall become absolutely entitled to such of her possessions as he and she would be likely to use in common; but in our days the distinction between income derived from land and income derived from permanent property other than land is one which it is absurd to draw. The feeling that this is so is one, and perhaps the most reasonable, of the grounds on which the practice of making marriage settlements rests. They do put those portions of personal property to which they apply on the same footing on which the law of the land puts landed property; that is, they give the husband control over his wife’s income, but not over her capital. If this is a good arrangement, why should it not be the rule instead of the exception? Why should the fact of marriage give the husband a right which he is never in practice allowed to enjoy, and take from the wife what she is never required to concede?
To give the full answer to this question, why this is done, in point of fact, it would be necessary to enter upon a matter far too technical to be advantageously discussed in this place—namely, the nature of the distinction which pervades our law between real and personal property, —a distinction which has done more to render the law intricate and perplexing than almost any other which has been admitted into it. The question whether it ought to be done is of more general interest, and by Way of introduction to it, and in illustration of the sort of arrangements which might be made, it may be desirable to give a general outline of the way in which such things are managed in France. This will afford some useful hints as to the principles on which the matter rests.
The French law of marriage, and of the effects which marriage produces upon property, is set forth in the Code Civile. The provisions which apply specially to the present subject are contained in the 5th title of the 3rd book, Articles 1,387-1,580. These articles, of course, enter into many details which it would be out of place to mention on the present occasion.
The most general and important of them are as follows—According to the French law, people may make any arrangements they please as to the effect of marriage on their property so long as they are not immoral, and do not interfere with certain fundamental principles—for instance, the personal rights of the husband over his wife and children. They may, however, declare in general terms that they marry either upon what may be called the partnership system (régime de la communauté), or the dower system (régime dotal). The partnership system constitutes the common law of France.
According to the partnership system, the fact of marriage makes the husband and wife a firm, the capital of which is composed of all the moveable property possessed by the parties at the time of their marriage, all the moveable property which they acquire during the marriage by succession or gift, and all the immovable property acquired during the marriage. Each party, however, may receive gifts, legacies, or devises separately. The liabilities of the firm consist of all personal debts owing at the time of the marriage, of debts incurred during the marriage by the husband, or by the wife with his consent, and of certain other charges, especially the food of the married persons, and the education and maintenance of their children.
The husband alone manages the property of the firm. He can sell, alienate, or mortgage it, without the consent of the wife. He cannot, however, gratuitously give away landed property, nor the whole, nor a proportion of the moveable property, except for the advancement (établissement) of the children of the marriage. The partnership is dissolved by natural or civil death, or by a separation, which may be either a séparation de biens, or a séparation de corps. The séparation de biens may be sued for by the wife if her property is endangered, and if the disorder of her husband’s affairs gives reason to fear that his property is not sufficient to satisfy his wife's demands upon him. After such a separation as to property, the wife must contribute to the expenses of the household and to the education of the children, but, subject to this, she manages her property herself, though she may not alienate her land without the husband’s consent. The séparation de corps resembles the judicial separation known to our own Divorce Court.
Upon the dissolution of the partnership the accounts are taken according to a set of rules prescribed by the code. Each party—the wife first— is repaid the amount to which they were originally entitled. If there is not enough to satisfy the wife's claims, she may charge the separate property of the husband, though he may not charge her separate property, obviously because he, as manager, is responsible for any loss. The surplus profits of the transaction, if any, are divided equally. The husband’s liability to debts is, in like manner, greater than the wife’s.
This partnership system may be varied in any way that the parties like. Some of the commonest forms of variation are enumerated in the code. They vary the amount to be brought into partnership, and the degree of liability to be incurred. The marriage may also be contracted on the terms that the parties shall be “séparés de biens." In this case the woman retains her property and the full control of it; she is bound, in default of special agreements, to contribute a third of her income to the expenses of the household.
Under the dowry system the dower (dot) is defined to be “property brought by the wife to the husband to support the expenses of the marriage.” The husband has the management of the dower, though neither he nor his wife, nor both together, can alienate laud constituted as a dower, except in two or three specified eases, unless in the marriage contract power to do so is reserved. On the dissolution of the marriage the husband or his heirs may be called upon to repay the dower. In the case of a. marriage on the dowry system, the property which is not included in the dower is called “biens paraphernaux," and is the separate property of the wife, though she cannot alienate it without the husband's consent.
Any special stipulations consistent with these leading provisions may be made by the contract of marriage.
There is a striking difference between the principles on which these rules are founded and those of our own law; and the contrast between the application of the principles is even more striking. It deserves special notice, because it is almost the only case in which, rightly or not, the French enjoy a greater amount of liberty than we. All the relations between husband and wife in this country are founded on the notion which is embodied in the maxim that husband and wife are one person in law, as explained by the equally quaint but strictly correct proviso—“and the husband is that person." This fundamental doctrine is so rigorously applied in practice, that a married woman in this country would have no proprietary rights at all but for marriage settlements, and the rights which they secure are exercised under the control and supervision of trustees. This constitutes the fundamental difference between English and French marriage settlements. The settlement in England is a. device for getting the husband to give up for the sake of his intended wife some of the odious powers which the law confers upon him. The wife says in substance, “Marry me if you will, but I will not be married unless you agree to give up some of the powers which the law gives you, and unless you consent to give third persons the right to hold you to your bargain, and prevent you not only from using your lawful powers, but from abusing the natural influence of a husband to my money prejudice.” The French law, speaking broadly, does not merge the wife in the husband, but considers marriage, in so far as its effects on property are concerned, as a contract like any other between two independent persons, each of whom retains his or her rights against the other, or against the world at large, after the marriage has been contracted, subject only to the general or special terms of the contract, as interpreted either by the law of the land or the wishes of the parties.
To compare the effects of these principles on the marriage relation in general would go beyond the limits of the present subject, though it may be observed that the French lawgivers have shown anxiety to establish a system which, whether right or wrong, consults the interests of the poor and of those who have a little money, as well as those of the rich. The English law, on the other hand, makes the wife almost the property of the husband, unless she has money enough to make it worth while to have a settlement.
The first and most striking difference between the two documents is, that an English settlement has trustees and a French contract has none. This difference gives the colour to the whole tenor of each document. Upon a. marriage in England the husband surrenders the control, except within very narrow limits, over a part of his own property, and gives up most of the rights which he would otherwise acquire over his wife‘s property, to third persons, selected for the purpose, who are interposed between the husband and wife for their own benefit, as it is supposed, and for the benefit of their future children. The trustees prevent the married persons (the word époux, which has no English equivalent, is very convenient) from investing their property except in certain specified ways; they prevent them from trenching on the capital except for specified purposes, such as the education and advancement of the children, subject to the consent of the trustees; and finally, they preserve the prospective interests of the children when they marry or come of age. In a French marriage there is nothing answering to this. The parties contract directly with each other, without the intervention of trustees (who are almost, if not altogether, unknown to French law), and the contract is enforced by the ordinary tribunals, as in other cases. Under the régime de communauté the arrangement is that, subject to special stipulations, the husband and wife shall form a partnership, the husband to be the managing partner, and to account to the wife, in person if necessary, or by his representatives if she survives him, to their children, or her heirs, if he survives her. Under the régime dotal, the bargain is, that, in order to assist the husband to pay the expenses of the marriage, the wife or her family will pay the husband a sum of money, which he is to manage during the marriage, and for which he or his representatives are liable to her representatives after the marriage. If “the dower is in danger,” he is liable at any time to be called to account as to his proceedings. Under either system the parents may, during their life-time, advance their children, but the interest of the children on the death of the parents is provided for, not as with us by clauses in the settlement, but by the general law as to inheritances.
The result of this is, that the husband and wife together, and in most cases the husband alone, has the entire management of the property, subject to such supervision as the courts may exercise over his proceedings at her instigation. No third person has a right to interfere between them; the wife is assumed to be competent to take care of her own interests with the ordinary assistance of the courts of law; and the arrangements made by the law itself are presumed to be those which, subject; to special modifications to meet particular cases, ought to subsist between married people. In a word, the French marriage contract is an instrument designed to apply the general law to the particular case. The English settlement is an instrument devised for the purpose of withdrawing the particular case from the general law, and putting it under a different law made for the occasion.
In comparing the merits of the two systems, it is right to observe that the presumption is in favour of the French system, because it harmonizes with the law, and allows an incomparably larger amount of liberty, and it is self-evident that the burden of proving a restraint to be beneficial is upon those who impose it. What, then, are the grounds upon which the restraints imposed by the English system may be justified, and how far are these grounds sound? Why should the management and control of a certain part of the property of the husband and of the property of the wife he transferred from the parties principally interested to trustees? Different reasons may be alleged in favour of different kinds of settlements. The ease, for instance, in which one of the parties to a marriage is possessed of a great landed estate, which may almost be said to rank amongst the institutions of the country, is peculiar. Whether the existence of such estates is beneficial to the public, may perhaps be a question, but it is an entirely different question from that which is here considered. Assuming, however—and the assumption is perfectly safe—that whatever may be the merits of such a state of things, it will continue to exist, and that the laws which regulate real property will not, for the present at least, he fundamentally revolutionized, it appears hardly possible to doubt that marriage settlements relating to such estates must continue, for various technical reasons, to be framed as they are at present.
Setting these cases aside, and considering the case of those who live upon personal property, it is often said that if a woman marries a trader it is highly important that she and her children should be protected against the possibility that he may be ruined by speculation. This, however, involves no necessity for our machinery of trusts. If people could marry here, as in France, en biens séparés, the wife’s protection as to her own property against the husband’s debts would be complete. It is a very serious question whether it is desirable that she should be able to have any further protection. A man in England may marry and may settle every shilling he has in the world on his wife for her separate use. He may live handsomely, or even splendidly, on their common income, no human being knowing to whom it belongs. On the credit obtained by the appearance thus kept up he may speculate as recklessly as he pleases, and having refreshed himself in the bankruptcy court he may inform his creditors that he owns nothing at all, that he is supported entirely by his wife‘s charity, and that he hopes that their wives are equally charitable and equally rich. How far such an arrangement would be possible in France we do not profess to know, but, speaking broadly, the French law seems to be wise in not favouring such schemes. If a woman marries a man in business, that is no reason why her fortune should be embarked in the business, and it may be very right to enable her by a simple declaration to protect it from his engagements; but why should she and the common children of the marriage be protected from the natural effects of the husband's imprudent management of his own fortune? The fact that a man is in a speculative trade, the fact that he is in trade at all, the fact that he is rash or imprudent, may be a very good reason for refusing to marry him; but to want to marry a speculator without suffering for the failure of his speculations, a trader without sharing to some extent the vicissitudes of his trade, an imprudent man without being injured by his imprudence, is to wish to play at the game of “heads I win, tails you lose;” it is to try to eat your cake and have your cake.
This remark applies with still greater force to settlements made on the marriage of persons not in trade; professional men, for example, or those who live on official or other fixed incomes. Why should a man of this class and his wife be prevented from managing their own money in their own way? A doctor with a fair practice marries a woman, say with £10,000. In England, if he had no private fortune, he would probably be called upon to insure his life, and to assign the policy and the £10,000 to trustees on the trusts shortly described above. Under the French law he would have the entire management of the property on the terms above described. The position of the husband would obviously be better under the French law, but in what respect and under what circumstances, would the position of the wife be better under the English law?
It may be said, first, that the investment clauses of the settlement secure her and give security to her parents, or those who are interested in her prosperity, that she shall have the advantage of a fair income derived from her property during her marriage; that the money shall not be squandered either in extravagant living or in rash speculation, and that there shall be something at all events to provide for the children of the marriage. It might be said—May not this man, if he gets the control of the money, dispose of it in fifty ways, and either coax or bully his wife into not interfering with his proceedings. If that happens, what will become of the children of the marriage? They will be reduced to poverty. All this sounds extremely plausible, especially in the ears of parents who do not share their daughter’s enthusiasm for an accepted lover, and if courtship were the permanent state of things, if the lady were to remain all her life a girl of twenty-one or twenty-two, if the man were always to be a young gentleman with M.D. just tacked to his name, with uncertain prospects, and, above all, invested with a character as unpleasant to the old people as it is interesting to the young ones, it might be all very well. Time, however, does not stand still. Some years, to use the novelist’s phrase, “elapse.” The marriage turns out well. The wife‘s parents are dead. Her interests and wishes centre in her husband and children. He is a prudent, active man, and he has opportunities, which in his judgment, and in hers too, it would be of the utmost importance to the whole family to seize, of employing part of his wife’s fortune in some particular way. Be the advantage never so great, be the necessity what it may, the trustees are bound by the express words of the settlement, and, unless they specifically authorize the use proposed to be made of the money, the thing cannot be done. A man and his wife thus find a set of trustees, who know and care comparatively little about them, their family and their affairs, constantly interposed between them and their own money. This is very unpleasant for the trustees, most vexatious to the parents, and if the parents are people of sense and have the ordinary inclination to consult the interest of their children, it is most disadvantageous for the children.
For instance, in the case supposed, the husband finds that his professional prospects in England are bad, but that there is an excellent opening for him at Sydney. He is most anxious to go to Sydney for other reasons: it would suit his wife's health; his and her nearest friends are settled there, &c. It would obviously be the part of a prudent man to go to Sydney, to spend part of the £10,000 in getting there; to furnish a house with another part of it; and very possibly to invest the rest in mortgage or Government securities in New South Wales, where the rate of interest is considerably higher than in England. Under the French system, our physician could do all this without asking any one’s leave. Under the English system he would probably be unable to apply one penny of his wife's money to any one of these purposes. He would have to borrow money for the purpose, on the security of his life-interest in the income, and submit to all the collateral vexation and expense of life insurance, &c.; in short, he would probably be unable to go at all.
This is but one instance of a hundred thousand. It may, indeed, be laid down as a general rule, which is almost self-evident if it is attended to, that an English marriage settlement of the kind in question is useful only in those cases in which the marriage itself was a mistake. If a man is such a fool as not to be fit to manage his own property, or such a brute as to be indifferent to the interests of his wife and children, and if his wife has so little character that she can neither gain his affections nor influence his conduct, nor appeal to a court of law for protection for herself and her children, the English system is, to some extent, better than the French. But to what extent, even in this case, is it better? It is quite true that under ordinary settlements it is difficult, if not impossible, to invest the settlement funds in an unsafe manner; but the husband may part with his life-interest in the income. A man of thirty, who is entitled to the interest of £10,000 for his life, may get a round sum for it paid down; and suppose he squanders it, what is to become of the family till he dies? His wife may be of about the same age, and she, at all events, will get nothing till his death. His children will get something on the death of both their parents, but by that time, in all probability, they would have got more harm from a long interval of poverty than the sum of money to which they might ultimately be entitled would ever repay. Nay, the sum itself may be diminished by the use of the power of advancement which most settlements contain, and if a father and his grown-up children wished to combine to defraud a settlement and to defeat its objects, and had confidence in each other, they might contrive ways of doing so. Even then, in the extreme case just put, a settlement is an imperfect security, but it is surely self-evident that if a woman marries a brute and a fool, she must expect to be miserable, and her children will be wretched too.
Cornhill Magazine, October 1863.