Married Women's Property Act

CHAPTER 272

OF THE

REVISED STATUTES, 1989

amended 2007, c. 17, s. 18

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An Act to Consolidate
and Amend the Acts Relating to
the Property of Married Women

Short title

1 This Act may be cited as the Married Women's Property Act. R.S., c. 272, s. 1.

INTERPRETATION

Interpretation

2 In this Act,

(a) "contract" includes the acceptance of any trust or of the office of executrix or administratrix;

(b) "Court" means the Supreme Court of Nova Scotia;

(c) "investment" includes deposits in any post office savings bank or other savings bank, or any other bank, annuities, sums forming part of public stocks or funds, shares, stock, debentures, debenture stock or other interests of or in any corporation, company or public body, municipal, commercial or otherwise, or of or in any industrial, provident or friendly benefit building or loan society;

(d) "judge" means a judge of the Court;

(e) "property" includes a thing in action. R.S., c. 272, s. 2; R.S., c. 240, s. 10; 1992, c. 16, s. 39.

APPLICATION

Liabilities and legal personal representatives of married woman

3 (1) The provisions of this Act as to liabilities of married women extend to all liabilities by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix, either before or after her marriage, and her husband is not subject to such liabilities unless he has acted or intermeddled in the trust or administration.

(2) For the purposes of this Act, the legal personal representatives of any married woman have in respect to her separate estate, the same rights and liabilities and are subject to the same jurisdiction as she would have or be subject to if she was living. R.S., c. 272, s. 3.

RIGHT TO HOLD PROPERTY AND INVESTMENTS

Acquisition and alienation of property

4 A married woman is capable of acquiring, holding and disposing of, by will or otherwise, any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. R.S., c. 272, s. 4.

Woman married on or after January 1, 1899

5 Every woman who marries on or after the first day of January, 1899, is entitled to have and to hold as her separate property, and dispose of in manner aforesaid, all real and personal property which belongs to her at the time of marriage or is acquired by or devolves upon her after marriage, including any wages, earnings, money and property gained or acquired by her in any employment, business, trade or occupation in which she is engaged or which she carries on separately from her husband or by the exercise of any literary, artistic or scientific skill. R.S., c. 272, s. 5.

Woman married before January 1, 1899

6 Every woman married before the first day of January, 1899, is entitled to have and to hold, and to dispose of in manner aforesaid, as her separate property, all real and personal property her title to which, whether vested or contingent and whether in possession, reversion or remainder, accrues after such date, including any wages, earnings, money and property so gained or acquired by her as aforesaid. R.S., c. 272, s. 6.

Investments held on January 1, 1899

7 (1) All investments that, on the first day of January, 1899, are standing in the sole name of any married woman, shall be deemed, unless and until the contrary is shown, to be the separate property of the married woman.

(2) The fact that any such investment is standing in the sole name of a married woman is sufficient prima facie evidence that she is beneficially entitled thereto for her separate use, so as to authorize and empower her to receive or transfer the same, and to receive the dividends, interest and profits thereof, without the concurrence of her husband, and to indemnify any public officer and all directors, managers and trustees of any bank, corporation, company, public body or society in respect thereto. R.S., c. 272, s. 7.

Investments acquired after January 1, 1899

8 (1) All investments that, after the first day of January, 1899, are allotted to, or placed, registered or transferred in or into or made to stand in the sole name of, any married woman, shall be deemed, unless and until the contrary is shown, to be her separate property, in respect to which, so far as any liability is incident thereto, her separate estate alone shall be liable, whether the same is so expressed in the document whereby the title to the same is created or certified or in the books or register wherein her title is entered or recorded, or not.

(2) Nothing in this Act requires or authorizes any corporation or joint stock company to admit any married woman to be a holder of any shares or stock therein to which any liability is incident, contrary to the provisions of any statute, charter, by-law, articles of association or deed of settlement regulating the corporation or company. R.S., c. 272, s. 8.

Joint investment

9 All the provisions in this Act contained as to investments that, on the first day of January, 1899, are standing in the sole name of a married woman, or that, after such date, are allotted to, or placed, registered or transferred to or into, or made to stand in the sole name of, a married woman, respectively extend and apply, so far as relates to the estate, right, title or interest of such married woman, to any investments that, at such date, or at any time afterwards, are standing in or allotted to, placed, registered or transferred to or into, or made to stand in the name of, any married woman jointly with any person or persons other than her husband. R.S., c. 272, s. 9.

Transfer of investment

10 It is not necessary for the husband of any married woman, in respect of her interest, to join in the transfer of any investment that on the first day of January, 1899, or at any time thereafter, is standing in the sole name of any married woman, or in the joint names of such married woman and any other person or persons not being her husband. R.S., c. 272, s. 10.

FRAUDULENT INVESTMENTS

Wrongful investment by wife of money of husband

11 If any investment has been made by a married woman by means of moneys of her husband, without his consent, the Court or a judge may, upon an application under this Act, order such investment and the dividends thereof, or any part thereof, to be transferred and paid to the husband. R.S., c. 272, s. 11.

Gift or investment to defraud creditors

12 Nothing in this Act contained shall give validity as against creditors of the husband to any gift by a husband to his wife of any property that after such gift continues to be in the order and disposition or reputed ownership of the husband, or to any 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 they might have been on the thirty-first day of December, 1898. R.S., c. 272, s. 12.

POWER TO CONTRACT AND
BIND SEPARATE ESTATE

Feme sole

13 (1) A married woman is capable in all respects as if she were a feme sole

(a) of entering into any contract and of making herself liable upon the contract in respect to her separate property to the extent of such property; and

(b) of suing and being sued in contract, tort or otherwise.

(2) It is not necessary in any action or other legal proceeding brought by or taken against any married woman to join the husband of the married woman with her as plaintiff or defendant or to make him a party thereto.

(3) Any damages or costs recovered by a married woman, in any such action or proceeding, are the separate property of the married woman, and any damages or costs recovered against a married woman in any such action or proceeding, are payable out of her separate property and not otherwise. R.S., c. 272, s. 13.

Contract made on or after January 1, 1899

14 (1) Every contract entered into by a married woman on or after the first day of January, 1899, otherwise than as agent,

(a) shall be deemed to be a contract entered into by her with respect to and to bind her separate property, whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into the contract;

(b) bind all separate property that she is at such time or thereafter possessed of or entitled to; and

(c) also is enforceable by process of law against all property that she is thereafter, while discovert, possessed of or entitled to.

(2) Nothing in this Section contained renders available to satisfy any liability or obligation arising out of such contract any separate property that at that time, or thereafter, the married woman is restrained from anticipating.

(3) Provided that in any action or proceeding instituted on or after the first day of January, 1899, by a woman, or by a guardian ad litem on her behalf, the court before which such action or proceeding is pending has jurisdiction by judgment or order, from time to time, to order the payment of the costs of the opposite party out of property that 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 is just. R.S., c. 272, s. 14.

Binding of property restrained from anticipation

15 Notwithstanding that a married woman is restrained from anticipation of any property, the Court or a judge may, if it or he thinks fit, where it appears to be for her benefit, by judgment or order with her consent bind her interest in any such property. R.S., c. 272, s. 15.

Effect of execution of general power by will

16 The execution of a general power by will, by a married woman, has the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate estate is made liable under this Act. R.S., c. 272, s. 16.

MONEY LENT TO HUSBAND

Money lent by wife to husband

17 Any money or other property of a married woman lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in case of his assignment for the benefit of creditors, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other property, after, but not before, all claims of the other creditors of the husband for valuable consideration in money or money's worth have been satisfied. R.S., c. 272, s. 17.

LEGAL REMEDIES OF MARRIED WOMAN

Feme sole

18 (1) Every married woman has in her own name against all persons whomsoever, including her husband, the same right to sue in contract or in tort as if she were a feme sole.

(2) Every married man has against his wife the same right to sue in contract or in tort as if his wife were a feme sole. R.S., c. 272, s. 18.

ANTE-NUPTIAL DEBTS AND LIABILITIES

Effect on separate property of wife

19 A woman after her marriage continues to be liable in respect to and to the extent of her separate property for all debts contracted and all contracts entered into or wrongs committed by her before her marriage, and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect to any such wrong, and all sums recovered against her in respect thereto, or for any costs relating thereto, are payable out of her separate property, and, as between her and her husband, unless there is a contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts or wrongs, and for all damages or costs recovered in respect thereto. R.S., c. 272, s. 19.

Effect on property acquired by husband from wife

20 A husband is liable for the debts of his wife contracted, and for all contracts entered into and wrongs committed by her, before marriage, to the extent of all property whatsoever belonging to his wife that he has acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him and any sums for which judgment has been bona fide recovered against him in any proceeding at law, in respect to any such debts, contracts or wrongs for or in respect to which his wife was liable before her marriage as aforesaid, but he shall not be liable for the same any further or otherwise, and any court in which a husband is sued for any such debt may direct any inquiry or proceedings which it thinks proper for the purpose of ascertaining the nature, amount or value of such property. R.S., c. 272, s. 20.

Spouses may be jointly sued

21 A husband and wife may be jointly sued in respect to any such debt or other liability, whether by contract or for any wrong, contracted or incurred by the wife before marriage as aforesaid if the plaintiff in the action seeks to establish his claim either wholly or in part against both of them, and in any such action, or in any action brought in respect to any such debt or liability against the husband alone, if it is not found that the husband is liable in respect to any property of the wife so acquired by him or to which he has become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever is the result of the action against his wife if jointly sued with him, and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her separate property, and as to the residue, if any, of such debt and damages, the judgment shall be a separate judgment against the wife as to her separate property only. R.S., c. 272, s. 21.

No liability of husband for tort of wife

22 No action or other legal proceeding for or in respect of any tort committed by a married woman after the marriage shall be brought or shall lie against her husband on the sole ground that he is her husband, and he is not liable for such tort or in respect thereof on such sole ground, and he shall not be joined in any such action or other legal proceeding on such sole ground. R.S., c. 272, s. 22.

MARRIAGE SETTLEMENTS NOT AFFECTED

Marriage settlement

23 Except as is in this Act provided in respect to costs incurred by a married woman, and as to the power of a court or a judge, nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation at present attached or to be hereafter attached to the enjoyment of any property or income by a woman under any settlement, agreement for settlement, will or other instrument, but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors. R.S., c. 272, s. 23.

MARRIED WOMAN AS EXECUTRIX

Married woman as executrix or trustee

24 A married woman who is an executrix or administratrix alone or jointly with any other person or persons of the estate of any deceased person, or a trustee alone or jointly as aforesaid of property subject to any trust, may sue or be sued, and may transfer or join in transferring any investment, without her husband, as if she were a feme sole. R.S., c. 272, s. 24.

AGREEMENT AS TO RELIGION OF CHILDREN

Agreement as to religion of children

25 Any agreement in writing made before marriage between an intended husband and intended wife, or the father, guardian or trustee of such intended wife, as to the religion in which the children of the intended marriage or any of them shall be brought up or educated, binds such husband and wife after marriage and their legal representatives, unless changed by the mutual consent of such husband and wife expressed in writing. R.S., c. 272, s. 25.

HUSBAND'S INTEREST IN WIFE'S REALTY

Debts of husband

26 Any estate or interest to which a husband is entitled by virtue of his marriage in any real property of his wife whether acquired before or after the nineteenth day of April, 1884, is not during her life, or the life of any of her children who survive her, subject to the debts of the husband, but this Section does not affect any right obtained by any person before the thirtieth day of March, 1900, under any judgment or execution against a husband in respect to any such estate or interest acquired by him before such thirtieth day of March. R.S., c. 272, s. 26.

PROTECTION ORDERS

Protection order

27 Any married woman

(a) who has a decree for alimony, or any decree, judgment or order in the nature of a decree or order for alimony, against her husband;

(b) who lives apart from her husband, having been obliged to leave him for cruelty or other cause that by law justifies her leaving him and renders him liable for her support;

(c) whose husband is an incompetent person, with or without lucid intervals;

(d) whose husband is undergoing sentence of imprisonment in a penitentiary, jail or other prison for an indictable offence;

(e) whose husband, from habitual drunkenness, profligacy or other cause, neglects, or refuses to provide for her support and that of his family;

(f) whose husband has never been in this Province during her coverture; or

(g) who is deserted or abandoned by her husband,

may apply to a judge for an order of protection, entitling her to have and enjoy all the earnings of her infant children, and any acquisition therefrom, free from the debts or obligations of her husband and from his control or disposition. R.S., c. 272, s. 27; 2007, c. 7, s. 18.

Grant and effective date of order

28 The judge may grant the order and may make it take effect from the time at which the cause in consequence of which it is granted commenced, or from any later date, as to such judge under the circumstances of the case seems just and right. R.S., c. 272, s. 28.

Content and effect of order

29 Every protection order shall state the time at which the cause in consequence of which the order is made commenced, and the order shall, as regards all persons dealing with the married woman named therein in reliance thereon, be conclusive as to the time when such cause commenced. R.S., c. 272, s. 29.

Application for discharging order

30 An application may be made to a judge for the discharge of an order of protection by

(a) the married woman named therein at any time; or

(b) the husband of such married woman, or any of her creditors, at any time on notice to such married woman. R.S., c. 272, s. 30.

Duplicate order

31 Any order of protection, and any order discharging such an order, may be made in duplicate. R.S., c. 272, s. 31.

Private or public hearing

32 The hearing of an application for an order of protection, or for an order discharging any such order, may be public or private, at the discretion of the judge. R.S., c. 272, s. 32.

Filing of order

33 (1) No order of protection, and no order discharging any such order, has any effect until the same is filed in the registry of deeds for the registration district in which the married woman named in such order resides.

(2) The registrar shall immediately upon receiving any such order indorse thereon the time of filing the same, and a certificate of such filing and of the date thereof signed by the registrar is without proof of the signature of the registrar evidence of such filing and date.

(3) A copy of any such order so filed certified under the hand of the registrar to be a true copy is evidence of such order and without proof of the signature of the registrar. R.S., c. 272, s. 33.

Effect of order of protection

34 Any such order of protection when so filed shall protect the earnings of the infant children of the married woman named therein against the husband of such married woman and her creditors, until an order discharging such order of protection is made and filed. R.S., c. 272, s. 34.

Effective date of discharging order

35 An order discharging an order of protection shall not in any case be retroactive, but shall take effect only from the time when the same is made and filed, and the married woman named therein shall continue to hold and enjoy to her separate use any property that, during the interval fixed for the coming into force of the order of protection and the filing of the order discharging the same, she has acquired by the earnings of her infant children. R.S., c. 272, s. 35.

DUTIES OF REGISTRAR OF DEEDS

Duties of registrar of deeds

36 (1) The registrar of deeds shall cause the certificates, orders of protection and orders discharging orders of protection, required by this Act to be filed, to be numbered and indexed and a list thereof to be made in a book kept by him for that purpose, containing the names of the parties in alphabetical order and the dates on which the same were filed, and shall permit such certificates and orders and books to be examined by any person.

(2) The registrar for his services under this Act shall be entitled to the fees mentioned in the Costs and Fees Act. R.S., c. 272, s. 36.

APPLICATION TO COURT

Order of judge in dispute of title

37 (1) In any question between husband and wife as to the title to, or possession of, property, either party or any corporation, company, public body or society in whose books any stocks, funds or shares of either party are standing, may apply by summons or otherwise, in a summary way, to a judge, and the judge 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 from time to time, and any inquiry touching the matters in question to be made in such manner as he thinks fit.

(2) An order of a judge made under this Section shall be subject to appeal in the same way as an order made by the same judge in an action.

(3) The judge, if either party so requests, may hear any such application in his private room.

(4) Any such corporation, company, public body or society, as aforesaid, shall in the matter of any such application, for the purpose of costs or otherwise, be treated as a stakeholder only. R.S., c. 272, s. 37.

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