The Law's Partiality to Married Women

“Gradually have the statutes transferred from the husband to the wife the control, the responsibility, and the ownership of her separate property, breaking up the former unity of property between them, and recognizing in the wife a distinct legal existence and capacity.”

Mr. Joel Prentiss Bishop in his Law of Married Women makes the following comments on the Act of 1874, one of a series of Massachusetts statutes for the amendment of the law of married women: “It leaves but little, as respects property and personal rights, to be complained of by the most ardent advocates of the policy which yields to wives the double advantages of matrimony and single bliss, and lifts from the shoulders of their husbands none of the burdens borne when the law gave them compensatory advantages. It remains only to add a provision compelling every young man to marry instantly the girl who chooses him, and the end of domestic woe will have come in Massachusetts.”

As Mr. Bishop is here criticising recent legislation, it will be necessary briefly to compare these statutes with the common law which they amended before we shall be prepared either to admit or to deny his conclusions.

Up to about forty years ago the common law of married women, essentially unchanged from what it was in the times of Blackstone, Coke, and Littleton, prevailed in England and in most of the United States. The legal position of married women is described by Blackstone as follows: “The husband and wife are one person in law; the legal existence of the woman is incorporated into that of the husband, under whose wing, protection, and cover she performs everything.” This unity of the husband and wife was the fundamental principle about which was built up a nicely adjusted system of law. For example, by the marriage all the personal property owned by the wife before the marriage or acquired by her during it, including her private earnings, vested absolutely in the husband; that is, in the absence of any ante-nuptial agreement to the contrary. Her choses in action—her property not in her possession, and the possession of which could be obtained only by an action at law—also became the husband’s, if during the marriage he reduced them to his possession. He was entitled also to the rents and profits of her real estate during the marriage; and if issue were born capable of inheriting, and the husband survived the wife, he had a life estate in all her lands.

On the other hand, as compensation to the wife, the husband was liable for all her ante-nuptial debts, and had to supply her and her children with the necessaries of life suitable to their station. If she survived him, she was entitled to a life estate in one third of all real estate owned by him at any time during the marriage. The wife’s legal capacity being merged in that of her husband, she could make neither a contract nor a will, nor could she control her own person. In the family the husband’s will was law. Even Prince Albert maintained his legal rights as head of the royal family; and when Queen Victoria was advised to regard and to rule him as one of her subjects, she replied that she had promised to obey as well as to love and cherish.

To be sure, in some cases rights thus denied married women at common law were obtained in equity. For example, equity permitted the wife to receive direct gifts, whether of land or of goods and chattels, to contract with her husband, and even to sue him. But for the most part the common law, as above stated, prevailed, and bore with unjust severity upon married women. The latter fact is well set forth in a report to the English Law Amendment Society: “Among the higher and wealthier classes, parents rarely allow their daughters to marry without securing for them some provision by the interference of trustees. … But in all cases where parties marry without any ante-nuptial contract, and where property is bequeathed to or acquired by the wife, without the technical words which create separate property, such property and acquisitions fall into the possession and absolute power of the husband. The operation of the law is that the rich are enabled, in many cases, to avoid the harshness of the common law, from which the middle class and those too poor to encounter the expenses of courts of equity are unable to escape.”

Between 1850 and 1860 there was much agitation for the amendment of the law of married women, both in England and in the United States. The society above mentioned recommended a uniform rule of law which should provide for all relations of the marriage state, apply to all classes, and prevail in all courts. Petitions with as many as 24,000 signatures, including the names of such eminent women as Mrs. Browning, Mrs. Jameson, Miss Martineau, and Mrs. Gaskell, were presented to Parliament by Lord Brougham and Sir Erskine Perry. Several measures of reform were introduced in Parliament, but none were passed, and very little immediate relief was obtained.

In the United States, however, the movement was more successful. For here the English custom of marriage settlements, by which women contemplating marriage stipulated for the reservation and protection of certain property rights, never prevailed to so great an extent, and hence was felt a more urgent need of reform. The cause was taken up with zeal by the advocates of women’s rights. By setting forth flagrant examples of the wrongs permitted by the laws, they aroused public sentiment and obtained immediate legislative action. The agitation spread over most of the States, and of the amendatory statutes enacted those passed in Massachusetts may be taken as examples.

In Massachusetts, as early as 1787, the power had been given to the Supreme Judicial Court to authorize a wife, when her husband had abandoned her or had been confined in state prison, to convert to her own use her real estate and the personal property held by the husband through the marriage. The Statute of 1845 allowed a wife to hold property for her separate use by an ante-nuptial contract, or to become the owner of property by conveyance or devise without the customary interference of a trustee, and with the same rights and liabilities as if she were unmarried.

The Statute of 1865 permitted a wife to carry on a trade or business and perform labor or service on her separate account and to her sole profit, and enacted further that all property which a woman might own at the time of marriage, the profits of the same, and whatever property came to her during the marriage, whether by descent or devise, bequest or gift, from any person other than her husband, should be her separate property, independent of her husband’s control and not liable for his debts. By the General Statutes of 1860, a married woman was authorized to “bargain, sell, and convey her separate real and personal property, enter into any contracts in reference to the same, carry on any trade or business, and perform any labor or services on her sole and separate account, and sue and be sued in all matters having relation to her separate property, business, trade, services, labor and earnings, in the same manner as if she were sole.” By the Act of 1874, supplementary of the preceding, she was allowed to “make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole, … but her separate conveyance of real estate shall be subject to her husband’s contingent interest therein, and nothing in this act shall authorize a married woman to convey to or make contracts with her husband.

In short, a married woman may now hold as her separate property, free from the control and interference of her husband, whatever property she has at the time of marriage, whatever comes to her during marriage, and whatever she acquires by business or labor on her separate account, with the rents and income of all such property; and that, too, with the same rights and subject to the same rules, responsibilities, and liabilities as a single woman. Except as regards her husband, she may make contracts, make her will, and may sue or be sued, as if she were unmarried. Such is the law in Massachusetts, and such, substantially, is the law in most of the States. England, too, has finally yielded to the reform. Married Women’s Property Acts passed Parliament in 1870, in 1874, and in 1882; and as a result the fact of marriage no longer effects any alteration in a woman’s right to, or power over, her property.

Thus gradually have the statutes transferred from the husband to the wife the control, the responsibility, and the ownership of her separate property, breaking up the former unity of property between them, and recognizing in the wife a distinct legal existence and capacity. But the theory of the common law was that the wife should contribute toward the support of the family; and hence it gave the husband her labor, her goods and chattels, and the profits of her realty. Has the statute law, in withholding this gift, afforded him any equivalent compensation? Has the wife assumed a part of the burden, as well as taken a part of the means, of supporting the family?

To be sure, the husband is, in general, no longer liable for debts of his wife contracted before the marriage, nor for such of her debts, taxes, or other liabilities incurred during the marriage as refer to her separate property, trade, business, labor, or services. Moreover, he still remains the head of the family, can fix the place of residence, and can regulate the household. But in these respects there is no adequate compensation, and in England and in most of the United States the separate property of the wife is in no way liable for the common support. The husband alone is bound to maintain his wife and children in a manner suitable to his station and condition in life, although she has property of her own; and he is responsible for any ordinary contracts or purchases made by her in his name, unless it can be shown that he has expressly forbidden others to supply her on his account. But even then he is answerable for the reasonable, necessary expenses of herself and of such of their children as live with her; and the term “necessaries” in this use is interpreted by the courts to include not food and clothing merely, but also “such articles of utility as are suitable to maintain her according to the estate and degree of her husband.”

A recent speaker in Tremont Temple, Boston, stated it as his belief that there had been too much transcendentalism in our legislation during the past one hundred years, and he could not have found a better illustration of the idea than in the preceding statutes. The common law of married women required to be changed to meet the needs of advancing society. But some of the changes that have been made seem to be the product of sentiment unbalanced by common sense. That marriage is a union between two persons, a combination of their effort and resources for the promotion of common interests, apparently has been forgotten, and in the seeking to obtain justice for the wife injustice has been done the husband. Perhaps it will be said that, although the husband must support the family, the wife fills an equally important position in supervising the domestic service and in training the children. No doubt these functions are essential, and the wife’s moral obligations to borne and children are, as a rule, recognized and performed. But this supervision of the home and training of the children are not required of her as a legal duty; and it is the wife’s legal, not moral, obligations which we are considering. Mr. Bishop again states the facts when he says: “If she chooses, she may leave her babes for him [her husband] to look after and nurse, and her meals for him to prepare with his own, while she engages in business on her own separate account, and accumulates money, not a cent of which or its increase is she required to appropriate to the support of her family or even of herself.” Is it, then, far from the truth that the law “yields to wives the double advantages of matrimony and single bliss”? It is plainly unjust that a married woman, even though she be a faithful wife and mother, should not be required, when able, to share the common expenditure; but how much more unjust it is that the law permits her, in addition, to neglect her husband and children that she may enrich herself with the profits of trade, and does not require her in the least to contribute from those profits either to the support of herself or of the family, or to the education of the children!

It is to be presumed that in most cases nature supplies the deficiency of the law, and the mother’s love for home and children makes her generous toward them. So under the common law the husband was seldom so unkind and ungenerous as to seize as his own the gifts to his wife from parents or friends. Nevertheless, such act would have been lawful, and was based on a right which was occasionally exercised; and it was to prevent even the possibility of such flagrant injustice that the advocates of women’s rights began, some forty years ago, the agitation for the amendment of the law of married women, and obtained statute after statute in their favor. Those reformers aimed to emancipate the wife from the domination of the husband by giving her the control of her property. They were not seeking to make married women a privileged class. Nor could this have been the intention of the legislature. For while giving the wife direct recognition and protection, the statutes have in general made her directly amenable to the laws; and while securing for her the control and income of her property, they have made her chargeable for all taxes and dues assessed upon it. If, then, the property of the wife is chargeable for the support of the State, should it not contribute to the maintenance of the family?

The English common law is perhaps the only considerable system of law that does not require some contribution from the wife to the expenses of the marriage. Under the civil law the husband had the management and income of a definite part of the wife’s separate property, called the dos, or dowry, as her gift “ad sustinenda onera matrimonii” This law still exists in Italy, and, as le régime dotal in France, may govern the marriage if it be so stipulated beforehand. This principle is seen also in the three systems of community of property, which are based upon the Roman law. Under the Communauté Universelle, which prevails in Holland, in parts of Germany, and in Neuchâtel, all property owned by either party at the marriage or acquired during it becomes common property, under the management of the husband, and is liable for the debts of the community. By the Communauté des Meubles et d’Acquêts, the movable property that either party owns at the marriage or acquires during it, all profits of the same, and all realty acquired for a consideration during the marriage form the common property, which is managed by the husband and is primarily answerable for the common support. This was adopted by the Code Civil as the common or universal law of France, to govern marriages not made under ante-nuptial contract; in a modified form, it existed in Scotland until recently assimilated to the English law, and it is still the law in some of the cantons of Switzerland. Lastly, under the Communauté d’Acquêts, the income of all property owned by either party at the marriage or acquired during it in exchange for such property, all earnings and savings, and all profits of trade carried on jointly or separately belong to the community, is managed by the husband, and is liable for the community debts. This is the law in parts of Germany and in Spain. By the law of Louisiana, which is based on the Code Civil, the right of Communauté d’Acquêts exists in all marriages in which there is no stipulation to the contrary. But by ante-nuptial contract the parties may agree to keep their property separate, and may fix the amount that each shall contribute to the marriage expenses; and in case of no agreement upon the latter point the wife contributes to the half of her income. The law of Louisiana has influenced that of other sections, and in Texas, California, Nevada, Washington, Idaho, and Arizona exists a similar community of gains, though largely modified by common law principles.

But even in European countries where there is separation, not community, of property, namely in Russia, Austria, and in parts of Germany and of Switzerland, the husband is legal manager of that part of his wife’s property not reserved to her own control, and if required to surrender his charge, he need not account for its income; this he is presumed to have expended for the wife’s benefit or for the expenses of the household.

In some portions of the United States, however, the common law has already been modified by statute. In Connecticut, Illinois, Iowa, Oregon, Washington, Alabama, and New Mexico, husband and wife are equally liable for the expenses of the family and the education of the children, and either or both may be sued. In Pennsylvania and Alabama a debt for necessaries for the family may be enforced against the wife’s property after an execution against the husband is returned unsatisfied; and in Vermont, Missouri, and Arkansas a judgment or execution against the husband for a debt for necessaries furnished to the wife or to the family may be enforced against her separate property, real or personal. But this legislation is presented rather to show a widely spread demand for a modification of the common law than to afford a model upon which the change should be made. The States mentioned are mostly in the West and Southwest; and the measures themselves, however just and expedient where society is forming on new principles and under new conditions, might, in older communities, be so radical or so abrupt as to work hardship and injustice. The marriage relation is established upon legal tradition, and any reform should come with the utmost respect for the past that is consistent with the demands of the present.

In England and in most of the States of the Union the husband is solely liable not only for his own support, but for that of his wife and children. Should the wife be required to share with the husband the necessary expenses of herself and their children only, or of the whole family, those of the husband included? There is room here for difference of opinion, but to limit her contribution to the support of herself and children seems impracticable. For since many chief means of subsistence are enjoyed by all members of the family in common, it would be impossible to estimate what portion of the common expense should be assigned to any one member.

If, then, the wife should share the necessary expenses of the whole family, should her part be equal with that of her husband? It seems not. Her separate property at present contributes nothing toward the common expenditure, and it would be unwise at one step to require it to become responsible for one half. Let a statute be passed substantially recognizing the principle that the wife shall share the burden of support, though her portion at first be small. Then let experience under the statute indicate how and when her part of the burden shall be increased.

Moreover, for the present, to make the wife’s liability equal with that of the husband would be unjust. For though the wife possess property equal in value to that of the husband, she is not ordinarily in a position to obtain from it an equally large income. Her own instincts, the economy of the household, and the sentiment of the community require her to devote the best of her time and energy to the home and to her children. That she should engage actively in the management or acquisition of property is as a rule both contrary to her desires and detrimental to the welfare of the family. The husband, on the other hand, is expected to leave to the wife the care of home and children, and to enter business or professional life. Such a life is not only congenial to his tastes and adapted to his capacities, but it also gives opportunity for the investment of capital and the accumulation of property.

The disadvantage of the wife is even more noticeable if, giving over to others the care of her household, she engages in manual or mental labor. Not only are some of the more desirable and more lucrative pursuits practically closed to her, but even where her labor is accepted, either from her inferior endurance and power of application or from unjust discriminations, it receives but poor reward.

These remarks, however, apply with less force to those exceptional cases in which married women take up a business, a trade, or a profession on their own account and on equal terms with men. In such cases it is evident that the wife’s contribution should more nearly, if not quite, equal that of the husband. But as a rule, let an unequal part, say one fourth or one third, of all necessary family expenditure be chargeable to the separate property of the wife. Let all suits for necessaries, whether of husband, of wife, or of children, be brought jointly against husband and wife; and upon judgment rendered, let separate executions issue, one against the property of the wife for one fourth or one third of the judgment, and the other against the property of the husband for the remaining three fourths or two thirds. In case no separate property of the wife is found, let fresh execution issue against the husband for the share for which the wife was primarily liable. Thus, at the last resort, the husband would be, as he is now, liable for the whole debt. But in no case should the wife be liable for more than her one fourth or one third, even though the husband be insolvent and his share of the debt remain unsatisfied.

This plan seems not only just to the parties, but also commended by public policy. It would discourage extravagance and fraud: for, the wife being exempted from the debts of the husband, it has become a common and disgraceful practice, favored by the difficulty of obtaining evidence, for the husband to place his property in the name of his wife, and thus to escape the payment of his just debts; and this evil would be largely diminished by making the wife jointly liable with the husband for the necessary expenses of the family.

But if the creditor be disregarded, and the relief of the husband alone be contemplated, it might be better to give the husband the option of claiming or of waiving the contribution of his wife. Then, if the wife have separate property, and the husband deem himself aggrieved at her refusal to share the necessary family expenses, he should be permitted to petition the probate or surrogate court; and the court should have power, after a hearing of the parties, to determine in its discretion both the nature and the extent of the liability, if any, which the wife should assume.

It cannot be expected at once and by a single statute to secure an equitable adjustment of the burdens of the marriage state. But there is urgent need of some measure, either along the line above suggested or after a wiser plan, to be followed later, if it shall seem expedient, by an adequate settlement of the question.