Married Women's Property Act 1935

Married Women's Property Act 1935

An Act to consolidate and amend the Acts relating to the property of married women, and to remove certain restrictions applying to married women in relation to their property

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Married Women's Property Act 1935 .

1A.   Interpretation

[Section 1A Inserted by No. 61 of 1965, s. 2 ][Section 1A Substituted by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] In this Act, magistrate means a magistrate sitting as the Magistrates Court (Civil Division).

2.   

3.   Married woman capable of holding property, and of contracting as a feme sole

(1)  A married woman shall be capable of acquiring, holding, and disposing of any real or personal property in the same manner in every respect as if she were a feme sole.

(2)  A married woman shall be capable of entering into and rendering herself liable in respect of any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole; and any damages or costs recovered by her in any such action or proceeding shall be her property; and any damages or costs awarded against her in any such action or proceeding shall be recoverable from and payable by her in the same manner in every respect as if she were a feme sole.

(3)  The marriage of a woman shall not affect any contract or liability entered into, or incurred, by her before marriage.

4.   Fraudulent investments with, or disposal of, money of husband may be followed

(1)  [Section 4 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] If any investment in any Commonwealth or State securities or in any deposit in any authorised deposit-taking institution, or in any share or debenture of any corporation, company, or public body, municipal, commercial, or otherwise, or in any share, debenture, benefit, right, or claim whatsoever in, to, or upon the funds of any industrial, provident, friendly, benefit, building, or loan society, shall have been made by a married woman by means of moneys of her husband, without his consent, the court may, upon an application under this Act, order such investment, and the dividends thereof, or any part thereof, to be transferred and paid respectively to the husband.

(2)  Nothing in this Act shall give validity as against creditors of the husband to any gift, by a husband to his wife, of any property, which, after such gift, shall continue to be in the order and disposition or reputed ownership of the husband, or to any deposit or other investment of moneys of the husband made by or in the name of his wife in fraud of his creditors; but any moneys so deposited or invested may be followed as if this Act had not passed.

5.   Application of moneys payable under policy of assurance for separate use

A married woman may effect a policy upon her own life or the life of her husband for her separate use; and the same and all benefit thereof shall enure accordingly.

6.   Policy of assurance for benefit of spouse or children creates trust

(1)  A policy of assurance effected by a man or woman on his or her own life, and expressed to be for the benefit of the spouse or children, or of the spouse and children, or any of them, of the insured shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any part of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debts.

(2)  The insured may by the policy, or by written declaration of trust, appoint a trustee of the moneys payable under the policy, and may at any time appoint a new trustee thereof, and may make provision for the appointment of a new trustee, and for the investment of the moneys payable under any such policy.

(3)  In default of any such appointment, such policy, immediately on its being effected, shall vest in the insured and his personal representative, in trust for the purposes aforesaid.

(4)  If, at any time after the death of the insured, there shall be no trustee, or it shall be expedient to appoint a new trustee, a trustee or new trustee may be appointed by the court under the provisions of the Trustee Act 1898 .

(5)  The receipt of the trustee or, in default of any appointment, or in default of notice to the insurance office, the receipt of the personal representative of the insured shall be a discharge to the insurance company office for the sum secured by the policy, or for the value thereof, in whole or in part.

(6)  If in any case it is proved that any such policy as aforesaid was effected and the premiums in respect thereof paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out of the moneys payable under the policy, a sum equal to the whole of the premiums paid in respect of such policy.

(7)  [Section 6 Subsection (7) omitted by No. 68 of 1994, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .  

7.   Remedies of married persons

[Section 7 Amended by No. 61 of 1965, s. 3 ]Every married person shall have the same rights and remedies in respect of the property of such person against all persons including the spouse of such person as if such person were unmarried.

7A.   Actions in tort between husband and wife

[Section 7A Inserted by No. 61 of 1965, s. 4 ]

(1)  Subject to this section, each of the parties to a marriage has the like right of action in tort against the other as if they were not married.

(2)  Where an action in tort is brought by one of the parties to a marriage against the other during the subsistence of the marriage, the court or a judge may stay the action if it appears to the court or judge –

(a) that no substantial benefit would accrue to either party from the continuation of the proceedings; or

(b) that the question or questions in issue could more conveniently be disposed of under section 8 –

and, without prejudice to paragraph (b) , the court or judge may, in such an action, exercise any power that could be exercised on an application under that section or give such directions as it or he thinks fit for the disposal under that section of any question arising in the proceedings.

(3)  [Section 7A Subsection (3) amended by No. 13 of 2012, s. 44, Applied:30 May 2012] Where an action to which this section relates is brought in the Magistrates Court (Civil Division) and the court stays the action, a party to the action who is dissatisfied with the decision of the court to stay the action may appeal from that decision to the Supreme Court, and that Court has jurisdiction to hear and determine the appeal.

(4)  The procedure on an appeal under subsection (3) shall be in accordance with the Rules of Court relating to appeals from inferior courts (other than licensing courts).

(5)  [Section 7A Subsection (5) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] Rules of court shall be made under the Supreme Court Civil Procedure Act 1932 and the Magistrates Court (Civil Division) Act 1992 making provision for requiring a court or judge to consider at an early stage of proceedings in tort between the parties to a marriage whether the power to stay the action under subsection (2) should or should not be exercised.

(6)  [Section 7A Subsection (6) omitted by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] .  .  .  .  .  .  .  .  

8.   Questions between husband and wife as to property

[Section 8 Amended by No. 61 of 1965, s. 5 ]

(1)  [Section 8 Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] In any question between husband and wife as to the title to or possession of property, either party, or any person in whose books any shares or interests of either party are standing, may apply by summons to a judge or to a magistrate to determine such question.

(2)  [Section 8 Subsection (2) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] Upon the hearing of such application the judge or magistrate may make such order with respect to the property in dispute, and as to the costs of and consequent on the application, as he thinks fit, or may direct such application to stand over, and any inquiry touching the matters in question to be made in such manner as he shall think fit.

(3)  [Section 8 Subsection (3) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] The judge or magistrate, if either party shall require, may hear any such application in chambers.

(4)  Any such person as aforesaid shall, in the matter of any such application for the purposes of costs or otherwise, be treated as a stakeholder only.

9.   Questions between married woman and husband's creditors

(1)  [Section 9 Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] [Section 9 Subsection (1) amended by No. 61 of 1965, s. 6 ]If any question shall arise between a married woman and any judgment creditor of her husband, or the Sheriff or any bailiff, trustee, liquidator, or other person acting on behalf of any creditor of her husband, in respect of the ownership of any property, it shall be lawful for such judgment creditor, Sheriff, bailiff, trustee, liquidator, or other person, or for such married woman, to apply by summons to a judge or to a magistrate to have such question determined.

(2)  [Section 9 Subsection (2) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] [Section 9 Subsection (2) amended by No. 61 of 1965, s. 6 ]Upon the hearing of such application, the judge or magistrate may make such order with respect to the property in dispute, and as to the costs of and incidental to the application, as he thinks fit, and may direct any inquiry touching the matters in question to be made in such manner as he thinks fit.

(3)  In all cases where such application is determined in favour of the married woman, the costs payable to such married woman shall be costs as between solicitor and client.

(4)  On the hearing of any such application the onus of proof as to the ownership of any property in dispute shall rest upon the married woman in all cases where such property has, within two years before the date of the summons, come into her possession.

(5)  [Section 9 Subsection (5) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] [Section 9 Subsection (5) amended by No. 61 of 1965, s. 6 ]The judge or magistrate on any such application may declare any gift or transfer of such property from a husband to a wife made within two years before the date of the summons in order to defeat or delay his creditors, or which has the effect of defeating or delaying his creditors, to be void.

10.   Money spent within two years by husband in improving wife's land, &c.

[Section 10 Amended by No. 61 of 1966, s. 7 ]

(1)  [Section 10 Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] Any such person as aforesaid may apply by summons to a judge or to a magistrate in any case in which a husband has, within two years before the date of such summons, erected buildings upon or otherwise improved land of his wife, or has purchased land in her name, or provided money to purchase land in her name or on her behalf.

(2)  [Section 10 Subsection (2) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] The judge or magistrate, upon hearing such summons, may fix the value of the land, if and so far as the same belongs to the wife independently of any such act as aforesaid by her husband and shall ascertain the value of the improvements or the amount expended or paid upon or for such land, and may order the wife to pay the amount so ascertained, or so much thereof as may suffice to satisfy the claim of the applicant.

(3)  [Section 10 Subsection (3) amended by No. 13 of 2012, s. 45, Applied:30 May 2012] [Section 10 Subsection (3) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] If the wife fails to comply with such order, the judge or magistrate, by the same or a subsequent order, may direct the Sheriff or, as the case requires, a bailiff of the Magistrates Court (Civil Division) to sell such land, or a sufficient part thereof, and to transfer the same as if he were proceeding under a writ of fieri facias or, as the case may be, a warrant of execution, and out of the proceeds arising from such sale the amount so fixed by the judge or magistrate as the value of the land belonging to the wife as aforesaid, shall be paid to the wife, and the amount so ascertained by the judge or magistrate shall be retained by the Sheriff or bailiff for the person taking out the summons, and the balance shall be paid to the wife; and the costs of the proceedings shall be in the discretion of the judge or magistrate.

(4)  On any application under this section or section 8 or section 9 , evidence may be given orally or by affidavit or in both such ways; and on any appeal the court may allow further evidence to be adduced.

10A.   Removal of matters from Magistrates Court (Civil Division) to Supreme Court

[Section 10A Inserted by No. 61 of 1965, s. 8 ]

(1)  [Section 10A Subsection (1) amended by No. 13 of 2012, s. 46, Applied:30 May 2012] Where–

(a) [Section 10A Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] [Section 10A Subsection (1) amended by No. 13 of 2012, s. 46, Applied:30 May 2012] an action to which section 7 or section 7A relates is brought in the Magistrates Court (Civil Division) the magistrate before whom that court is held; or

(b) [Section 10A Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] an application is made to a magistrate under section 8 , or section 9 , or section 10 , the magistrate –

if he is of the opinion that any of the matters in question between the parties would be more properly dealt with by the Supreme Court, shall proceed no further with the hearing of the application and in such a case the action or application shall, by virtue of this section, be deemed to be removed to the Supreme Court, and all documents filed therein shall be transmitted by the registrar of the Magistrates Court (Civil Division) to the Registrar of the Supreme Court.

(2)  Where an action or application is removed to the Supreme Court under this section, that Court or a judge shall proceed as if the action had originally been commenced therein or the application had originally been made to a judge, and all subsequent proceedings shall be according to the course and practice of that Court.

11.   Contracts by married women: Restraint on anticipation not affected except by order of court as to costs

(1)  Every contract hereafter entered into by a married woman otherwise than as agent shall have the like effect as if she were unmarried.

(2)  Nothing in this section shall render available to satisfy any liability or obligation arising out of any such contract any separate property which at that time or thereafter she is restrained from anticipating.

(3)  In any action or proceeding instituted by a woman, the court before which such action or proceeding is pending shall have jurisdiction by judgment or order to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and may enforce such payment by the appointment of a receiver and the sale of the property or otherwise as may be just.

12.   Married woman to be subject to the provisions of the Debtors Act 1870

Every married woman shall hereafter be subject to all the provisions of the Debtors Act 1870 in respect of any debt, or instalment of any debt, due from her in pursuance of any order or judgment of any competent court.

13.   Husband not to be liable for wife's torts

The husband of a married woman shall not be liable for any tort committed by her which shall not be a sufficient cause of action against him alone.

14.   Construction of gifts to husband and wife and another person

Wherever a devise or bequest of any real or personal property shall be hereafter made to a man and his wife and another person jointly, in equal shares or without any direction as to the proportions in which such property shall be distributed among them, the husband and the wife shall take separate and equal shares in the same manner and to the same extent as if the relation of husband and wife did not exist between them.

15.   Trusteeship of married woman not affected by marriage

(1)  A married woman who is appointed or becomes by construction or operation of law a trustee of any real property, with power to sell and convey, or otherwise transfer the same to any other person, may execute all necessary and proper deeds and instruments for conveying or otherwise transferring such real property to any other person in the same manner as if she were not married.

(2)  This section shall have effect as from 29th October 1883.

SCHEDULE 1 - Repeals

Section 2