LAWS OF KENYA The Married WoMens ProPerTy acT, 1882 Published by the National Council for Law Reporting with the Authority of the Attorney General Publishers note: This is a United Kingdom Statute of General Application applied in Kenya by virtue of Section 3 (1) (c) of the Judicature Act (Cap.
8) www.kenyalaw.org 2 Married Womens Property Act, 1882 THE MARRIED WOMENS PROPERTY ACT, 1882 Commencement: 18th August, 1882 An Act to consolidate and amend the Acts relating to the Property of Married Women.
WHEREAS it is expedient to consolidate and amend the Act of the thirty-third and thirty-fourth Victoria, chapter ninety-three, intituled The Married Womens Property Act, 1870, and the Act of the thirty-seventh and thirty-eighth Victoria, chapter fty, intituled An Act to amend the Married Womens Property Act (1870): Be it enacted by the Queens most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Married woman 1.
(1) A married woman shall, in accordance with the provisions to be capable of of this Act, be capable of acquiring, holding, and disposing by will or holding property otherwise, of any real or personal property as her separate property, in and of contracting the same manner as if she were a feme sole, without the intervention of as a feme sole.
(2) A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on 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 her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise.
(3) Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown.
(4) Every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire.
(5) Every married woman carrying on a trade separately from Married Womens Property Act, 1882 3 her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a feme sole.
Every woman who marries after the commencement of this Act Property of a shall be entitled to have and to hold as her separate property and to dispose woman married of in manner aforesaid all real and personal property which shall belong after the Act to be to her at the time of marriage, or shall be acquired by or devolve upon her held by her as a after marriage, including any wages, earnings, money, and property gained feme sole.
or acquired by her in any employment, 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 scientic skill.
Any money or other estate of the wife lent or entrusted by her to Loans by wife to her husband for the purpose of any trade or business carried on by him, husband.
or otherwise, shall be treated as assets of her husbands estate in case of his bankruptcy, under reservation of the wifes claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of the other creditors of the husband for valuable consideration in money or moneys worth have been satised.
The execution of a general power by will by a married woman Execution of shall have the effect of making the property appointed liable for her debts general power.
and other liabilities in the same manner as her separate estate is made liable under this Act.
Every woman married before the commencement of this Act Property acquired shall be entitled to have and to hold and to dispose of in manner aforesaid after the Act by a as her separate property all real and personal property, her title to which, woman married whether vested or contingent, and whether in possession, reversion, or before the Act to remainder, shall accrue after the commencement of this Act, including be held by her as a any wages, earnings, money, and property so gained or acquired by her feme sole.
All deposits in any post ofce or other savings bank, or in any As to stock, & c.
other bank, all annuities granted by the Commissioners for the Reduction to which a married of the National Debt or by any other person, and all sums forming part of woman is entitled.
the public stocks or funds, or of any other stocks or funds transferable in the books of the Governor and Company of the Bank of England, or of any other bank, which at the commencement of this Act are standing in the sole name of a married woman, and all 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, friendly, benet, building, or loan society, which at the commencement of this Act are standing in her name, shall be deemed, unless and until the contrary be shown, to be the separate property of such married woman; and the fact that any such deposit, annuity, sum forming part of the public stocks or funds, or of any other stocks or funds transferable in the books of 4 Married Womens Property Act, 1882 the Governor and Company of the Bank of England or of any other bank, share, stock, debenture, debenture stock, or other interest as aforesaid, is standing in the sole name of a married woman, shall be sufcient prima facie evidence that she is benecially 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 prots thereof, without the concurrence of her husband, and to indemnify the Postmaster General, the Commissioners for the Reduction of the National Debt, the Governor and Company of the Bank of England, the Governor and Company of the Bank of Ireland, and all directors, managers, and trustees of every such bank, corporation, company, public body, or society as aforesaid, in respect thereof.
As to stock, & c.
All sums forming part of the public stocks or funds, or of any to be transferred, other stocks or funds transferable in the books of the Bank of England or & c.
to a married of any other bank, and all such deposits and annuities respectively as are woman.
mentioned in the last preceding section, and all shares, stock, debentures, debenture stock, and other interests of or in any such corporation, company, public body, or society as aforesaid, which after the commencement of this Act shall be 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 be shown, to be her separate property, in respect of which so far as any liability may be incident thereto her separate estate shall alone be liable, whether the same shall be so expressed in the document whereby her title to the same is created or certied, or in the books or register wherein her title is entered or recorded, or not.
Provided always, that nothing in this Act shall require or authorize 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 may be incident, contrary to the provisions of any Act of Parliament, charter, byelaw, articles of association, or deed of settlement regulating such corporation or company.
Investments in 8.
All the provisions herein-before contained as to deposits in any joint names of post ofce or other savings bank, or in any other bank, annuities granted married women by the Commissioners for the Reduction of the National Debt or by any and others.
other person, sums forming part of the public stocks or funds, or of any other stocks or funds transferable in the books of the Bank of England or of any other bank, shares, stock, debentures, debenture stock, or other interests of or in any such corporation, company, public body, or society as aforesaid respectively, which at the commencement of this Act shall be standing in the sole name of a married woman, or which, after that time, shall be allotted to, or placed, registered, or transferred to or into, or made to stand in, the sole name of a married woman, shall respectively extend and apply, so far as relates to the estate, right, title, or interest of the married woman, to any of the particulars aforesaid which, at the commencement Married Womens Property Act, 1882 5 of this Act, or at any time afterwards, shall be standing in, or shall be allotted to, placed, registered, or transferred to or into, or made to stand in, the name of any married woman jointly with any persons or person other than her husband.
It shall not be necessary for the husband of any married woman, As to stock, & c.
in respect of her interest, to join in the transfer of any such annuity or standing in the deposit as aforesaid, or any sum forming part of the public stocks or funds, joint names of a or of any other stocks or funds transferable as aforesaid, or any share, married woman and others.
stock, debenture, debenture stock, or other benet, right, claim, or other interest of or in any such corporation, company, public body, or society as aforesaid, which is now or shall at any time hereafter be 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.
If any investment in any such deposit or annuity as aforesaid, Fraudulent or in any of the public stocks or funds, or in any other stocks or funds investments transferable as aforesaid, or in any share, stock, debenture, or debenture with money of stock of any corporation, company, or public body, municipal, commercial, husband.
or otherwise, or in any share, debenture, benet, right, or claim whatsoever in, to, or upon the funds of any industrial, provident, friendly, benet, 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 section seventeen of this Act, order such investment, and the dividends thereof, or any part thereof, to be transferred and paid respectively to the husband; and 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, 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.
A married woman may by virtue of the power of making Moneys payable contracts herein-before contained effect a policy upon her own life or under policy of the life of her husband for her separate use; and the same and all benet assurance not to thereof shall enure accordingly.
form part of estate of the insured.
A policy of assurance effected by any man on his own life, and expressed to be for the benet of his wife, or of his children, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the benet of her husband, or of her children, or of her husband and children, or any of them, 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 object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debt: 6 Married Womens Property Act, 1882 Provided, that if it shall be proved that the policy was effected and the premiums 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 premiums so paid.
The insured may by the policy, or by any memorandum under his or her hand, appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trustee or new trustees thereof, and may make provision for the appointment of a new trustee or new trustees thereof, and for the investment of the moneys payable under any such policy.
In default of any such appointment of a trustee, such policy, immediately on its being effected, shall vest in the insured and his or her legal personal representatives, in trust for the purposes aforesaid.
If, at the time of the death of the insured, or at any time afterwards, there shall be no trustee, or it shall be expedient to appoint a new trustee or new trustees, a trustee or trustees or a new trustee or new trustees may be appointed by any 13 &14Vict.c.
court having jurisdiction under the provisions of the Trustee Act, 1850, or the Acts amending and extending the same.
The receipt of a trustee or trustees duly appointed, or, in default of any such appointment, or in default of notice to the insurance ofce, the receipt of the legal personal representative of the insured shall be a discharge to the ofce for the sum secured by the policy, or for the value thereof, in whole or in part.
Remedies of 12.
Every woman, whether married before or after this Act, shall married woman have in her own name against all persons whomsoever, including her for protection and husband, the same civil remedies, and also (subject, as regards her security of separate husband, to the proviso herein-after contained) the same remedies and property.
redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort.
In any indictment or other proceeding under this section it shall be sufcient to allege such property to be her property; and in any proceeding under this section a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding: Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any act done by the husband while they were living together, concerning property claimed by the wife, unless such property shall have been wrongfully taken by the husband when leaving or deserting, or about to leave or desert, his wife.
Wifes ante-nuptial 13.
A woman after her marriage shall continue to be liable debts and liabilities.
in respect 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, including any sums for which she may be liable Married Womens Property Act, 1882 7 as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint stock companies; and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect of any such wrong; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property; and, as between her and her husband, unless there be any contract between them to the contrary, a 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 thereof: Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for a her separate use under the Acts hereby repealed or otherwise, if this Act had not passed.
A husband shall be liable for the debts of his wife contracted, Husband to be and for all contracts entered into and wrongs committed by her, before liable for his marriage, including any liabilities to which she may be so subject under wifes debts the Acts relating to joint stock companies as aforesaid, to the extent of all contracted before property whatsoever belonging to his wife which he shall have acquired marriage to a or become entitled to from or through his wife, after deducting therefrom certain extent.
any payments made by him, and any sums for which judgment may have been bona de recovered against him in any proceeding at law, in respect of any such debts, contracts, or wrongs for or in respect of 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 shall be sued for any such debts shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property: Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of any such debt or other liability of his wife as aforesaid.
A husband and wife may be jointly sued in respect of any such Suits for ante- debt or other liability (whether by contract or for any wrong) contracted nuptial liabilities.
or incurred by the wife before marriage as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them; and if in any such action, or in any action brought in respect of any such debt or liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the 8 Married Womens Property Act, 1882 action against the 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 debts 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.
Act of wife liable 16.
A wife doing any act in with respect to any property of her to criminal husband, which, if done by the husband with respect to property of the proceedings.
wife, would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband.
In any question as to between husband and wife as to the title between husband to or possession of property, either party, or any such bank, corporation, and wife as to company, public body, or society as aforesaid in whose books any stocks, property to be funds, or shares of either party are standing, may apply by summons or decided in a otherwise in a summary way to any judge of the High Court of Justice in summary way.
England or in Ireland, according as such property is in England or Ireland, or (at the option of the applicant irrespectively of the value of the property in dispute) in England to the judge of the county court of the district, or in Ireland to the chairman of the civil bill court of the division in which either party resides, and the judge of the High Court of Justice or of the county court, or the chairman of the civil bill court (as the case may be) 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 t, 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 shall think t: Provided always, that any order of a judge of the High Court of Justice to be made under the provisions of this section shall be subject to appeal in the same way as an order made by the same judge in a suit pending or on an equitable plaint in the same court would be; and any order of a county or civil bill court under the provisions of this section shall be subject to appeal in the same way as any other order made by the same court would be, and all proceedings in a county court or civil bill court under this section in which, by reason of the value of the property in dispute, such court would not have had jurisdiction if this Act or the Married Womens Property Act, 1870, had not passed, may, at the option of the defendant or respondent to such proceedings, be removed as of right into the High Court of Justice in England or Ireland (as the case may be), by writ of certiorari or otherwise as may be prescribed by any rule of such High Court; but any order made or act done in the course of such proceedings prior to such removal shall be valid, unless order shall be made to the contrary by such High Court: Provided also, that the judge of the High Court of Justice or of the county court, or the chairman of the Married Womens Property Act, 1882 9 civil bill court, if either party so require, may hear any such application in his private room: Provided also, that any such bank, corporation, company, public body, or society as aforesaid, shall, in the matter of any such application for the purposes of costs or otherwise, be treated as a stakeholder only.
A married woman who is an executrix or administratrix alone Married woman or jointly with any other person or persons of the estate of any deceased as an executrix or person, or a trustee alone or jointly as aforesaid of property subject to trustee.
any trust, may sue or be sued, and may transfer or join in transferring any such annuity or deposit as aforesaid, or any sum forming part of the public stocks or funds, or of any other stocks or funds transferable as aforesaid, or any share, stock, debenture, debenture stock, or other benet, right, claim, or other interest of or in any such corporation, company, public body, or society in that character, without her husband, as if she were a feme sole.
Nothing in this Act contained shall interfere with or affect any Saving of existing settlement or agreement for a settlement made or to be made, whether settlements, and before or after marriage, respecting the property of any married woman, the power to make or shall interfere with or render inoperative any restriction against future settlements.
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 a settlement, will, or other instrument; but no restriction against anticipation contained in any settlement or agreement for a settlement of a womans own property to be 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 the creditors.
Where in England the husband of any woman having separate Married woman to property becomes chargeable to any union or parish, the justices having be liable to the jurisdiction in such union or parish may, in petty sessions assembled, upon parish for the application of the guardians of the poor, issue a summons against the wife, maintenance of and make and enforce such order against her for the maintenance of her her husband.
husband out of such separate property as by the thirty-third section of the 31& 32 Vict.c.
Poor Law Amendment Act, 1868, they may now make and enforce against 122.
a husband for the maintenance of his wife if she becomes chargeable to any union or parish.
Where in Ireland relief is given under the provisions of the Acts relating to the relief of the destitute poor to the husband of any woman having separate property, the cost price of such relief is hereby declared to be a loan from the guardians of the union in which the same shall be given, and shall be recoverable from such woman as if she were a feme sole by the same actions and proceedings as money lent.
10 Married Womens Property Act, 1882 Married woman 21.
A married woman having separate property shall be subject to all to be liable to such liability for the maintenance of her children and the grandchildren as the parish for the the husband is now by law subject to for the maintenance of her children maintenance of and grandchildren: her children.
Provided always, that nothing in this Act shall relieve her husband from any liability imposed upon him by law to maintain her children or grandchildren.
Repeal of 33 & 34 22.
The Married Womens Property Act, 1870, and the Married Vict.
93.37 & Womens Property Act, 1870, Amendment Act, 1874, are hereby repealed: 38 Vict.c.
Provided that such repeal shall not affect any act done or right acquired while either of such Acts was in force, or any right or liability of any husband or wife, married before the commencement of this Act, to sue or be sued under the provisions of the said repealed Acts or either of them, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act.
For the purposes of this Act the legal personal representative of representative of any married woman shall in respect of her separate estate have the same married woman.
rights and liabilities and be subject to the same jurisdiction as she would be if she were living.
Interpretation of 24.
The word contract in this Act shall include the acceptance of terms.
any trust, or of the ofce of executrix or administratrix, and the provisions of this Act as to liabilities of married women shall 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 shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administration.
The word property in this Act includes a thing in action.
The date of the commencement of this Act shall be the rst of of Act.
January one thousand eight hundred and eighty-three.
Extent of Act.
This Act shall not extend to Scotland.
This Act may be cited as the Married Womens Property Act, 1882.