Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XIII.

The Onerosity of Provisions made in Postnuptial Contracts.

The Lady of Sir James Campbell of Auchinbreck, and his Creditors, Competing

Date: 26 July 1744
Case No. No 103.

A postnuptial provision to a wife, held to be onerous, in so far as suitable and moderate.

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After Sir James Campbell had contracted debts above the value of his estate he, in April 1736, married a young woman, who had for some time been in his family as governess to his children, without any contract of marriage; but in October 1736, he granted her a liferent bond of annuity for L. 100 Sterling, besides a house with some conveniences, containing precept of sasine, whereon she was infeft. Of this bond, his creditors having raised reduction on the act 1621 the Lords ‘Restricted the lady's liferent bond of provision and infeftment to L. 50 Sterling yearly, in full of all she could claim by the said bond.’

Some of the Lords were of opinion, That where a woman marries without a contract, upon the faith of the legal provision, any postnuptial provision is a gratuitous deed, and as such, reducible at the instance of prior creditors; and that, were it otherways, there would be nothing to hinder any man who had married without a contract, after he knew himself insolvent, to settle a provision on his wife preferable to all his personal creditors.

But the opinion which prevailed was, that marriage itself is an onerous cause, which yet will not be sufficient to sustain the provision any further than what may be a moderate subsistence; for so far only the husband is under obligation. And as to the case supposed of a husband's settling a provision upon his wife, after he knew himself become insolvent, even in that case, it was thought the provision might be sustained to the extent of a subsistence.

But be that as it will, the present case was thought different, as in the supposed case there is more an appearance of fraud than in the present case, where there was no change of the husband's circumstances between the marriage and the time of granting the provision; and, as it was not controverted, but that at the marriage he might have granted a provision, it was thought to be straining too hard to say, he could give none thereafter, although no change had happened in his circumstances.

Fol. Dic. v. 3. p. 50. Kilkerran, (Bankrupt.) No 4. p. 51. *** C. Home reports the same case thus:

In the ranking of the creditors of Sir James Campbell of Auchinbreck, Sir James's lady produced a bond of provision granted by her husband to her, on which infeftment had followed, which proceeded on the narrative, that she had not been secured in a competent jointure, as had been communed and agreed upon betwixt them before the marriage; and therefore, in implement thereof, he disponed to her an annuity of L. 100 Sterling yearly, free of all burdens; and likewise the liferent of certain lands therein mentioned, extending to about 400 merks Scots of yearly rent, proviso, that in case she married after Sir James's decease, she should restrict the same to L. 50 Sterling yearly.

Objected for the creditors, That this interest could be sustained to no extent, in respect Sir James, being absolutely insolvent, could not make a provision for his wife to the prejudice of his creditors; and if it could be sustained at all, it could only be to a very moderate extent; more especially as she brought no tocher, and that Sir James was insolvent at the time of granting the bond, and owing debts far exceeding the value of his estate, for a considerable part of which infeftments were taken, and others ready to be taken.

Answered: The provision must stand to the full extent, as it was not gratuitous but onerous. That it proceeded on an antecedent paction, not executed in writing. That in considering the extent of a provision, the husband's rank and quality, as well as his circumstances, fell to be considered, and that Sir James was a man of considerable figure and fortune. That if this provision had been made in a contract of marriage, it would have been good to the full extent; and there was no difference betwixt an antenuptial and postnuptial contract, or bond of provision granted by the husband to the wife after marriage, and the provision was so far from being large, that it was very moderate.

Replied: There was a very great difference betwixt contracts executed before or after marriage, and voluntary bonds of provision by a husband to a wife, who contracts nothing on her part, nor even agrees to accept thereof in lieu of her legal provision, as in this case. For, in the first case, the provision must stand, where no particular qualification of fraud can be alleged. In contracts postnuptial, where the wife clubs a tocher, these fall also to be sustained as onerous, unless where there is a total exception, a provision made to the wife, Whereby her husband's just creditors may be damnified. But the third case, which is the present, is different from both, It is true, that, in some sense, this bond may be considered as onerous, in respect of the husband's obligation jure natur s to aliment his wife; and in this light the husband's circumstances, and extent of his fortune, are to be considered more than his rank and quality. A husband, whatever be his rank and quality in the world, is bound to provide for his wife's aliment: That obligation is a debt upon him, and he is bound to it, whether he have any substance or not; but the quantity must vary according to his circumstances. And if the case be as here, that the husband was absolutely insolvent, though he was bound to aliment his wife, the obligation is of a very different extent from the former; and therefore this bond ought either to be reduced in toto, or restricted to a moderate aliment.

The Lords restricted the lady's liferent bond of provision and infeftment, to L. 50 Sterling yearly, and that in full of all she can claim by the said bond. And declared, that the said L. 50 shall not affect, or come in competition with creditors, whose debts were made real by infeftment, or secured by inhibition, before the date of the said bond of provision.

C. Home, No 273. p. 442.