University of Tasmania
whole_AlfordMargueriteJoan1988_thesis.pdf (18.09 MB)

\Financial misconduct\" : the capacity of matrimonial property law to provide a remedy"

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posted on 2023-05-27, 08:14 authored by Alford, MJ
In order to prevent a husband from co-ercing his wife into transferring her separate estate to him, in the late eighteenth century Lord Thurlow created an exception to the general rule that equity declares void any attempt to impose a direct restraint upon a disponee's powers of alienation. Henceforth a practice developed whereby property transferred for the separate use of a married woman was given \without power of anticipation\" although a similarly worded limitation would suffice. The married woman was thereby disabled during coverture from alienating the property or anticipating its future income. Just as the restraint protected the wife against a predatory husband it also operated against her creditors. While she could devise or bequeath the property in question she could neither sell nor mortgage it not could her creditors claim it in satisfaction of any debts she might have owed them. Courts of equity had no jurisdiction to override or modify a particular restraint on alienation in the interests of the married woman who was subject to it. Because of the basic economic changes caused by the Industrial Revolution with its attendant specialisation of the labour and concentration of production in factories society also changed. It became more mobile and more urbanized and many wives gained employment in the new factories. Very little production was now carried out in the home and the husband away-at work for long periods found that his power position in the family was weakened. Since changes in the family had economic causes these were most likely to be reflected in that field of the law most closely tied to the economy that is property. As the wife began to receive income (and in some cases accumulate property) reform of the common law doctrine of coverture was imperative. Well-to-do women could enjoy the benefits of property drafted marriage settlements incorporating the equitable notions of separate estate and restraints on anticipation but poorer women lacked these advantages and to the extent that they had assets they suffered the full rigours of the common law."


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Copyright 1986 the Author - The University is continuing to endeavour to trace the copyright owner(s) and in the meantime this item has been reproduced here in good faith. We would be pleased to hear from the copyright owner(s). Thesis (LL.B.)--University of Tasmania, 1988

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