252. Where divorce has followed on the ground of desertion, it has been determined by the statute (1573, c. 55), as interpreted by Lord Stair, that "the party injurer loseth all benefit accruing through the marriage; but the party injured hath the same benefit as by the other's natural death." (Stair, i. 4. 20.)

253. If the husband be the guilty party, he is thus obliged not only to restore the tocher (dos), but he forfeits such conventional provisions as may have been made by the marriage contract (see Marriage Contract, p. 62) in his favour, together with his rights of courtesy and jus mariti. Should the wife, on the other hand, be guilty, she has no claim for the restitution of the tocher, nor for terce or jus relicta, nor for any conventional provision in her favour by marriage contract. (Ersk. i. 6. 46.)

254. The innocent party in either case continues to be entitled to the legal provisions. The wife may claim her terce and jus relictæ, unless they are excluded by her contract of marriage, and the husband's right to courtesy emerges just as if she were dead. No right arising to the guilty party after the divorce can be claimed by the innocent; and if the guilty husband be insolvent, the wife cannot compete with his creditors, who are entitled to retain the tocher, the wife's share of the goods in communion, and to claim the courtesy; the reason being, that the wife is treated as a partner, who can have no claims until the company debts are first paid. If both parties are guilty, and each divorces the other, the rule of law is that neither of the spouses has any claim on the property of the other. (Thomson, 1871, 9 M. 1069.) A husband divorced for adultery has been held entitled to sue for moveable estate which vested in his wife before divorce, but which had not been paid. (Ferguson, 1877, 4 R. 393.)

255. The death of the defender before decree of divorce has been pronounced, bars these consequences; but where the pursuer dies, it is doubtful whether an action of divorce may not be taken up by his heir. (Supra, sec. 225.)

256. Divorce for adultery not having been introduced by legislative enactment, like divorce for desertion, but having its origin in the common law, its effects on the patrimonial interests of the parties can only be ascertained from the decisions of the Court. These have established the same general rule as that received in the case of divorce for desertion.

257. To this there would appear to be one exception. The tocher, which must be restored by the husband who has deserted his wife, may be retained by him who has committed adultery. (Justice. Murray, M. 334; Fraser, 1222.) The grounds of this distinction are not apparent, [and as] to whether [it] may safely be regarded as settled, see Nicolson's Erskine, vol. i. p. 176, notes; and Bell's Prin. 7th ed. 1622, note e; Fraser, 1222; Harvey, 1872, 10 M. H. L. 26, Lord Westbury.

258. Donations by the innocent to the guilty spouse are revoked by divorce; those by the guilty to the innocent become irrevocable. (Ersk. i. 6. 46.)

XIII. DECLARATOR OF NULLITY OF MARRIAGE.

259. A marriage, however celebrated, may be declared by the Court of Session to have been no marriage at all, if it be proved that any of the impediments to marriage above enumerated (ante, p. 12 et seq.) existed at the time when it was attempted to be contracted. (Ersk. i. 4. 7.)

260. Unlike actions of divorce, actions of nullity of marriage, on any other ground than impotency, may be instituted, not only by either of the parties to the alleged contract, but by any one having a patrimonial interest in setting it aside. (Bell's Prin. 1524.)

261. Along with the conclusion for nullity, a conclusion for damages is sometimes inserted against the party, who, knowing of the impediment to the marriage, yet entrapped the other into the connection. Damages in such a case are generally high,

on account of the peculiar aggravation of the wrong. (Fraser, 139.)

XIV. CONSISTORIAL ACTIONS.

262. Consistorial actions-i.e. declarators of marriage, nullity of marriage, declarators of legitimacy and bastardy, actions of divorce and separation-must now be brought before the Court of Session.

263. No decree can be pronounced in any of these actions in absence of the defender, or even on his admission, unless substantiated by other evidence. (11 Geo. Iv. and 1 Will. rv. c. 69, sec. 36; Muirhead v. Muirhead, May 28, 1846.) The reason of this rule is the extreme importance to society of the true status of its members being positively ascertained. But actions of aliment between husband and wife are to be deemed summary causes both in the Outer and in the Inner House; and when no appearance is entered for the defender, decreet shall be pronounced in absence, without proof, as in other cases before the Court of Session. (24 and 25 Vict. c. 86, sec. 15.)

264. In actions for separation and divorce, the Court may make interim orders without respect to children. (Ib. sec. 9.) By the same enactment (sec. 13) it is provided that the Lord Ordinary shall take proofs in consistorial actions in place of Sheriffs Commissary, to whom compensation is granted.

XV. MARRIAGE CONTRACTS.

265. Having considered the rights and obligations of married parties which spring from the common or the statute law, it is proper to treat of the class of deeds by which these provisions may be altered to suit the views of the parties, or the circumstances of the particular case.

266. The various rights which may require to be adjusted, and the many contingencies against which provision may have

to be made, render the subject one of great intricacy, which can here be treated only in the most general manner.

267. It is competent for the parties to a marriage to make any conditions with each other which are not inconsistent with the conjugal relation, or in violation of morality or of public law.

268. Marriage contracts differ very essentially in their effects, according to whether they are entered into before or after marriage.

269. In ante-nuptial contracts, the stipulations are conditions of the marriage: hence they are onerous,-effectual not only against the parties themselves, but against creditors. But if the husband be insolvent, and the provision to the wife unreasonable and immoderate, it will not be sustained in a question either with the creditors or the heir, at least of a prior marriage. It is thought, however, that in this class of cases the phrase "reasonable provision" would receive a rather liberal construction. (Bell's Com. 638.) This subject was discussed in Carphin v. Clapperton, May 24, 1867, 5 M. 797; and the judges all seemed to concede, and particularly Lord Neaves, that marriage contracts are not onerous so far as provisions made in contemplation of them are excessive; but the measure of the rationality of the provision is not to be weighed in nice scales. (Miller, 1871, 10 M. 107; aff. 1875, 2 R. H. L. 62; Watson, 1874, 1 R. 882.)

270. By post-nuptial contracts, again, no alterations to the prejudice of creditors, and in favour of the wife and children, can be made, because the interests of the latter have already been identified with those of the husband and father. Even the right to their legal share of their father's property, which arises to the children by the unconditional marriage of their parents, is independent of such contracts. (Stair, ii. 3. 41, 5. 19. 6 passim, 8. 45; Ersk. i. 6, iii. 3. 30, 8. 38; Bell's Prin. 1941; Miller, ut sup.)

271. Two highly convenient provisions of the common law,

by which some species of conventional arrangement was rendered almost a matter of necessity, were removed by the Moveable Succession Act. It is now no longer necessary to stipulate that, where the wife shall predecease her husband, her representatives shall not be entitled to carry off a share of the goods in communion, even in the case in which these goods belonged originally to the husband, nor that a marriage dissolved within year and day shall have the same patrimonial effects as if it had subsisted for a longer period. (18 Vict. c. 23, secs. 6 and 7.)

272. The main object of a marriage contract is to provide against the consequences of the misfortune or imprudence of the husband, by placing in the hands of trustees, or otherwise setting apart, a separate estate or fund for the wife. This may be done either with the rents of heritable property, or with moveables; and the arrangement may proceed either from a third party conveying to the wife, under the provision that the husband's interest shall be excluded, or it may be made before marriage by the wife herself with her own funds, or by the husband with his funds.

273. In general, such conventional arrangements must be made expressly; and unless the jus relicta is excluded in words, the wife will continue to be entitled to it, notwithstanding any stipulations that may have been made in her favour. (Ersk. iii. 9. 16 and 25; Howden v. Crichton, May 18, 1821; Fraser v. Rankin, Dec. 17, 1835.) But as regards terce, the reverse is declared to be the case by statute. (1681, c. 9.) Even after marriage, if the husband be solvent at the time, he may set apart a separate fund, of "reasonable amount," for the support of his wife. (Fraser, 1500.) But recent decisions seem to indicate that, because the husband is always bound to aliment his wife, such provisions would not receive effect until after the death of the husband; in other words, that the husband's creditors could claim the yearly profits during his life.

274. Provision may also be made for children in this manner.