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express, by a deed explicitly revoking, or tacit, by a deed inconsistent with the terms of the donation. A donation may be revoked after dissolution of the marriage while the donor is alive; and if he will not use the right, it may be acquired by his creditors. In the interpretation of deeds between husband and wife, if a deed do not bear that it is for an onerous cause, it is presumed to be gratuitous. If it bear to be for an onerous cause, the presumption is reversed, but the deed may be proved to be gratuitous,3 Where the interest of a third party is involved by the original deed, the donation is not revocable, unless that party's interest has been collusively introduced to cover a simple donation between husband and wife.4
Every deed granted under the effect of force or fear is null. In the case of a wife granting a deed, the proof of such influence on the part of the husband, especially if the deed favours himself, will be supported by presumptions. If the deed be in favour of a third party, reduction on this ground is barred by voluntary ratification of it by the wife in presence of a magistrate. In this ceremony, she declares on oath that the deed is her free act; and not only must the husband be absent, but the ratification must expressly bear that he was so. Such ratification will not bar reduction of a deed in favour of the husband. Where a wife refused, however, to ratify a deed in favour of her husband, it was found not reducible on the simple ground of non-ratification, and that force, fraud, or fear must be proved. It is held that the ratification will not deprive the wife of any right of challenge on other ground than force and fear-such as fraud.8
Sect. 8.—Separation. The obligation of the parties to live together may be enforced by an action of adherence, but notwithstanding this obligation, the law countenances a separation, and a separate provision. This may be either judicial or voluntary. In the former case, it proceeds on cause shown. The best ground for judicial separation is dread of personal violence; but the law looks beyond mere corporeal danger to such circumstances incompatible with the proper duties of the parties, as may be the occasion of permanent distress to any one of them. If the husband “ should either abandon his family, or turn his
wife out of doors, or by barbarous treatment endanger her life, or even offer such indignities to her person as must render her condition quite uncomfortable, the judge will, on proper proof, authorize a separation a menså et toro (from board and bed), and award a separate alimony to her, suitable to her husband's fortune, to take place from the time of the separation, and to continue till there shall be either a reconciliation between the parties, or a sentence of divorce.” 1 It was held good ground for awarding separation and aliment, that the husband insisted on retaining in his family a servant with whom the wife discovered he had carried on an illicit intercourse previously to the marriage.2
The amount of aliment must depend on the circumstances of each case. In a comparatively late instance it was held that a man enjoying an income of £200 a-year, but who was not shown to possess any capital, should give £50 a-year.3 Aliment will be awarded to the wife without a judicial separation, when the husband has deserted her. Voluntary separations, and alimentary provisions founded on them, are revocable by either party choosing to adhere, unless they have proceeded on such grounds as would justify judicial separation. A voluntary separation will not found an action for aliment, if none be provided for by the terms of the contract; but if a wife have suffered bad usage, her interest is protected by her being able to raise an action of separation and aliment, notwithstanding the previous agreement. The wife being either judicially, or by voluntary contract of separation, provided with a separate aliment, the husband ceases to be responsible for any of her obligations; they are effectual against herself, but as by a fiction of law her person cannot be attached by diligence while she is a wife,“ the creditors who continue to deal with her, contract upon her faith solely."7 The husband's jus mariti in regard to property belonging to the wife is not forfeited by the separation, but it appears that he ceases to exercise his right to administer the wife's estate. 8
Sect. 9.--Dissolution by Divorce. Actions of divorce, which were formerly brought before the commissaries of Edinburgh, now form part of the jurisdiction of the Court of Session, and questions of fact con
E. i. 6, 19; and see Fraser, i. 454._2 Letham v. Letham, 8th March 1823.-3 Elder v. Elder, 5th February 183).—4 B. P. 1545.5 E. i. 6. 30. Shand v. Shand, 28th Feb. 1832.— Lawson v. Macculloch, 28th November 1797, M, 6157.— E. i. 6, 25.—8 Fraser, i. 404, 431, 465.
nected with such cases may, at the discretion of the court, be tried by jury. To prevent actions by which parties might, by mutual consent, dissolve marriages, the pursuer must swear that the action is not carried on by collusion.” The action of divorce is personal to the husband or wife injured, and cannot, even after it has commenced, be continued on the death of the pursuer, by heirs or others interested in its decision. In the practice of our law the grounds of divorce are two: adultery and wilful desertion. The latter must have continued for four years. The process in such a case commences with an action of adherence, which it is usual to raise after one year has elapsed, sentence in the divorce being suspended until the lapse of the four.5
Divorce on the ground of adultery may be met by a proof of remission of the injury, and such remission will be presumed where the injured party cohabits with the other after knowledge of the offence. Lenocinium, or such conduct on the part of the husband as would naturally tend to corrupt his wife's morals, or expose her to seduction, will be a good defence to her.7 Recrimination is no defence, but it may be a ground for a counter action, the result of which will be that the party first injured will have those pecuniary advantages, to be afterwards mentioned, which accrue to the successful pursuer of a divorce. Before an action of divorce can proceed, both the parties must have acquired a domicile by forty days' residence in Scotland. On the subject of divorce, an unfortunate discrepancy exists between the law of England and that of Scotland. The extinction of marriage by an action of divorce is unknown to the law of England, where a marriage can only be dissolved by an act of Parliament. 10 Owing to this discrepancy, a person who had been married in England having obtained a decree of divorce in Scotland. and being immediately after married in England, was there tried and punished for bigamy, on the principle that a marriage contracted in England is in its nature indissoluble in any part of the world.11
The effect of divorce is, that " the party offender tyne and lose their tocher and the donationes propter nuptias," 12 by which it is understood that the wife, if she be the offender. forfeits to the husband the whole of her tocher or dower, and ceases to have any claim for the provisions which the husband may have come under obligation to award to her; and
'11 Geo. IV. & 1 Wm. IV. c. 69, 88 33, 37.–2 E. i. 6, 45.-3 B. P. 1536. - 1573, c. 55.—5 E. i. 6, 44.— Duncan v. Maitland, 9th March 1809. — ? M*Kenzie v. his Wife, 28th Feb. 1745, M. 333.—8 B. P. 1535.— 9 Ringer v. Ringer, 15th January 1840.-10 Ferguson, 84.- 11 Case of Lolly, Russell 189,- 12 1573, c. 55.
that the husband if he be the offender, must restore the sum he may have received in name of tocher, and must at the same time make good all provisions in the wife's favour, whether they be legal or conventional. The statute on which this law is founded applies solely to divorce on account of desertion, and its extension to the case of adultery was much doubted.2
It is a doctrine of the law, fortunately almost unknown to practice, that a marriage may be dissolved at the instance of one party on the ground of the physical disability of the other at the time of the union. It is disputed whether this dissolution is by divorce or declaration of nullity, but it seems to be of the former character, as the question whether there shall be dissolution or not is held to depend on the conduct of the parties, who may contract an indissoluble marriage if they are aware of the physical peculiarity at the time.3
Sect. 10.—Dissolution by Death. Marriage is considered by the law as permanent, if it has either subsisted for a full year and part of the next day, or a living child has been born of it, the crying of the child being in cases of doubt admitted as the only proof that it was born alive. When a marriage is dissolved by the death of either party, before it has been so made permanent, all matters of pecuniary interest revert, as nearly as they practically can, to their former situation. All grants made in consideration of the marriage are restored. The tocher, if it came from the wife's property, reverts to her if she be the survivor; or to her executors, if she has deceased. If it has been given by another person, it reverts to the giver. The husband is said to be accountable for the whole tocher, deducting the wife's funeral expenses, or the debts contracted by her previous to the marriage; but it seems to be understood that the expenses of the wife's maintenance may be deducted from her moveable property falling incidentally under the management of the husband while the marriage subsisted. All rights of succession, or others arising from survivorship, cease, whether legal, or conventional through marriage-contracts. These reversions, which must always create confusion, may be barred by the terms of marriage-contracts.8 (See above, p. 20.) A widow losing her provision by this rule,
has a claim against her husband's representatives for aliment and mourning expenses, and it is said that the same principle would extend to an indigent widower. The consequences of the dissolution of a permanent marriage by death, in as far as it affects the division of or succession to property, will be found discussed under the subject of succession (see Part III.); but two liferent rights, the one accruing to the wife, the other to the husband surviving, are considered in the ensuing section. On the death of a husband, when there is a permanent marriage, the widow is entitled to aliment till the first term of Whitsunday or Martinmas, when her legal or conventional provisions become payable, and to mourning expenses.?
Sect. 11.- Terce and Courtesy. Terce is the right of the widow, in a permanent marriage, to a liferent of one third part of the heritable property in which her deceased husband was infeft when he died. Where a special provision has been granted by the husband, either before or after the marriage, it is understood to supersede the terce, unless the right to terce is reserved specially or by implication.3 “ The husband's Seisin is both the measure and the security of the widow's Terce, wherefore every right which excludes the husband's seisin is also preferable to the terce, and, in so far as it extends, must diminish it."4 On this principle, debts made real on the estate exclude the terce, and so will the exercise of a faculty to burden, if infeftment has followed. The husband's right must be a substantial and not a nominal or trust right; and, on the other hand, the terce will be sustained to the extent of the husband's real interest, where he stands only nominally divested :5 as where a debt is secured on his property in the form of an absolute disposition. (See Index, Bond and Disposition.)6 Tenements held burgage (see below, p. 58,) are excluded from the terce; so are feu-duties, patronages, leases, and coal-mines.? Where the husband, shortly before his death, feued out the greater part of his property in a single transaction, the widow's right of terce was found to extend only to the rent of the remainder.8 Where lands are previously charged with a terce, the widow of a second deceasing proprietor enjoys a third of the remaining two-thirds, termed a “ lesser terce," until the death of the previous tercer, when she acquires right to a full terce.9