1902 Encyclopedia > Law Relating to Husband and Wife

Law Relating to Husband and Wife

HUSBAND AND WIFE, LAW RELATING TO. For the modes in which the relation of husband and wife may be constituted and dissolved, see MARRIAGE and DIVORCE. The present article will deal only with the effect of. marriage on the legal position of the spouses. The per-son chiefly affected is the wife, who probably in all politi-cal systems becomes subject, in consequence of marriage, to some kind of disability. The most favourable system scarcely leaves her as free as an unmarried woman; and the most unfavourable subjects her absolutely to the authority of her husband. In modern times the effect of marriage on property is perhaps the most important of its conse-quences, and on this point the laws of different states show wide diversity of principles.

The history of Roman law exhibits a transition from an extreme theory to its opposite. The position of the wife in the earliest Roman household was regulated by the law of Mantis. She fell under the " hand " of her husband,— became one of his family, along with his sons and daughters, natural or adopted, and his slaves. The dominion which, so far as the children was concerned, was known as the patria potestas, was, with reference to the wife, called the manus. The subj ect members of the family, whether wife or children, had, broadly speaking, no rights of their own ; all were merged in the potestas of the husband and father. If this institution implied the complete subjection of the wife to the husband, it also implied a much closer bond of union between them than we find in the later Roman law. The wife was at least a member of the family, and on her husband's death she succeeded, like the children, to freedom and a share of the inheritance. Manus, however, was not essential to a legal marriage; its restraints were irksome and unpopular, and in course of time it absolutely ceased to exist, leaving no equivalent protection of the stability of family life. The later Roman marriage left the spouses comparatively independent of each other. The bond was easily dissolved, and while it lasted was loose and easy. The distance between the two modes of mar-riage may be estimated by the fact that, while under the former the wife was one of the husband's immediate heirs, under the latter she was called to the inheritance only after his kith and kin had been exhausted, and only in prefer-ence to the treasury. It seems doubtful how far she had, during the continuance of marriage, a legal right to en-force aliment from her husband, although if he neglected her she had the unsatisfactory remedy of an easy divorce. The law in fact preferred to leave the parties to arrange their mutual rights and obligations by private contracts. Hence the importance of the Law of Settlements {Dotes). The Dos and the Donatio ante nuptias were settlements by or on behalf of the husband or wife, during the continu-ance of the marriage, and the law seems to have looked with some jealousy on gifts made by one to the other in any less formal way, as possibly tainted with undue influ-ence. During the marriage the husband had the adminis-tration of the property, and its destination afterwards might depend on the nature of the settlement and the con-duct of the parties.

The manus of the Roman law appears to be only one instance of an institution common to all primitive societies, and suitable only to society in a primitive state. On the continent of Europe after many centuries, during which local usages were brought under the influence of principles derived from the Roman law, a theory of marriage became established, the leading feature of which is the community of goods between husband and wife. Describing the prin-ciple as it prevails in France, Story {Conflict of Laws, § 130) says—" This community or nuptial partnership (in the absence of any special contract) generally extends to all the movable property of the husband and wife, and to the fruits, income, and revenue thereof It extends also to all immovable property of the husband and wife ac-quired during the marriage, but not to such immovable pro-perty as either possessed at the time of the marriage, or which came to them afterwards by title of succession or by gift. The property thus acquired by this nuptial partnership is liable to the debts of the parties existing at the time of the marriage ; to the debts contracted by the husband during the community, or by the wife during the community with the consent of the husband ; and to debts contracted for the maintenance of the family. .... The husband alone is entitled to administer the property of the community, and he may alien, sell, or mortgage it without the concurrence of the wife." But he cannot dispose by will of more than his share of the common property, nor can he part with it gratuitously inter vivos. The community is dissolved by death (natural or civil), divorce, separation of body, or separation of property. On separation of body or of property the wife is entitled to the full control of her movable property, but cannot alien her immovable property without her husband's consent, or legal authority. On the death of either party the property is divided in equal moities between the survivor and the heirs of the deceased.

LAW OF ENGLAND.—The English common law has as usual followed its own course in dealing with this subject, and in no department are its rules more entirely insular and independent. The text writers all assume two funda-mental principles, which between them establish a system of rights totally unlike that we have just described. Husband and wife are said to be one person in the eye of the law—UNICA PERSONA, QUIA CARO UNA ET SANGUIS UNUS. Hence a man cannot grant or give anything to his wife, because she is himself, and if there are any compacts between them before marriage they are dissolved by the union of persons. Hence, too, the old rule of law, now greatly modified, that husband and wife could not be allowed to give evidence against each other, in any trial, civil or criminal. The unity, however, is one-sided only ; it is the wife who is merged in the husband, not the husband in the wife. And when the theory does not apply, the disabilities of " coverture " suspend the active exercise of the wife's legal faculties. The old technical phraseology describes husband and wife as BARON and FEMME; the rights of the husband are baronial rights. From one point of view the wife is merged in the husband, from another she is as one of his vassals. A curious example is the immunity of the wife in certain cases from punishment for crime committed in the presence and on the presumed coercion of the husband. " So great a favourite," says Blackstone, " is the female sex of the laws of England."

The application of these principles with reference to the property of the wife, and her capacity to contract, may now be briefly traced.

The FREEHOLD PROPERTY of the wife becomes vested in the husband and herself during the coverture, and he has the management and the profits. If the wife has been in actual possession at any time during the marriage of an estate of inheritance, and if there has been a child of the marriage capable of inheriting, then the husband becomes entitled on his wife's death to hold the'estate for his own life as tenant by the CURTESY OF ENGLAND (CURIALITAS). Beyond this, however, the husband's rights do not extend, and the wife's
heir at last succeeds to the inheritance. The wife cannot part with her real estate without the concurrence of the husband; and even so she must be examined apart from her husband, to ascertain whether she freely and voluntarily consents to the deed.

With regard to personal property, it passes absolutely at common law to the husband. Specific things in the possession of the wife (CHOSES in possession) become the property of the husband at once ; things not in possession, but due and recoverable from others (CHOSES in action), may be recovered by the husband. A CHOSE in action not reduced into actual possession, when the marriage is dissolved by death, reverts to the wife if she is the survivor; if the husband survives, he can obtain possession by taking out letters of administration. A CHOSE in action is to be distinguished from a specific thing which, although the pro-perty of the wife, is for the time being in the hands of another. In the latter case the property is in the wife, and passes at once to the husband ; in the former the wife has a MERE JUS IN PERSONAM, which the husband may enforce if he chooses, but which is still capable of reverting to the wife if the husband dies without enforcing it.

The CHATTELS REAL of the wife (I.E., personal property, dependent on, and partaking of, the nature of reality, such as leaseholds) pass to the husband, subject to the wife's right of survivorship, unless barred by the husband by some act done during his life. A disposition by will does not bar the wife's interest; but any disposition INTER VIVOS by the husband will be valid and effective.

The courts of equity, however, greatly modified the rules of the common law by the introduction of the wife's SEPARATE ESTCDE, I.E., property settled to the wife for her separate use, independently of her husband. The principle seems to have been originally admitted in a case of actual, separation, when a fund was given for the maintenance of the wife while living apart from her husband. And the conditions under which separate estate may be enjoyed have taken the court of chancery many generations to develop. No particular form of words is necessary to create a separate estate, and the intervention of trustees, though common, is not necessary. A clear intention to de-prive the husband of his common law rights will be suffi-cient to do so. In such a case a married woman is entitled to deal with her property as if she was unmarried, although the earlier decisions were in favour of requiring her binding engagements to be in writing or under seal. But it is now held that any engagements, clearly made with reference to the separate estate, will bind that estate, exactly as if the woman had been a FEMME SOLE. Connected with the doctrine of separate use is the equitable contrivance of RESTRAINT ON ANTICIPATION, whereby property may be so settled to the separate use of a married woman that she cannot, during coverture, alienate it or anticipate the income. No such restraint is recognized in the case of a man or of & FEMME SOLE, and it depends entirely on the separate estate ; and the separate estate has its existence only during coverture, so that a woman to whom such an estate is given may dispose of it so long as she is unmarried, but becomes bound by the restraint as soon as she is married. In yet another way the court of chancery interfered to protect the interests of married women. When a husband sought the aid of that court to get possession of his wife's CHOSES in action, he was required to make a provision i for her and her children out of the fund sought to be re-! covered. This is called the wife's EQUITY TO a SETTLEMENT, and is said to be based on the original maxim of chancery jurisprudence, that "he who seeks equity must do equity." j Two other property interests of minor importance are recognized. The wife's PIN-MONEY is a yearly allowance settled on her before marriage for the purchase of clothes and ornaments suitable to her husband's station, but it is not an absolute gift to the separate use of the wife; and a wife surviving her husband cannot claim for more than one year's arrears of pin-money. PARAPHERNALIA are jewels and other ornaments given to the wife for the purpose of being worn by her, but not as her separate property. The hus-band may dispose of them by act INTER VIVOS but not by will, unless the will confers other benefits on the wife, in which case she must elect between the will and the para-phernalia.

The corresponding interest of the wife in the property of the husband is much more meagre and illusory. Besides I a general right to maintenance at her husband's expense, she has at common law a right to DOWER in her husband's lands, and to a PARS RATIONABILIS (third) of his personal estate, if he dies intestate. The former, which originally was a solid provision for widows, has by the ingenuity of conveyancers, as well as by positive enactment, been reduced to very slender dimensions. It may be destroyed by a mere declaration to that effect on the part of the husband, as well as by his conveyance of the land or by his will.

The common practice of regulating the rights of husband, wife, and children by marriage settlements obviates the hardships of the common law—at least for the women of the wealthier classes. The legislature by the Married Women's Property Acts of 1870 and 1874 has introduced changes, the benefit of which will probably be most keenly felt among the poor. The chief provisions are shortly these :—(1) the earnings of a married woman in an occu-pation carried on by her apart from her husband are to be held as property settled to her separate use, independent of her husband, and her investments of such earnings are similarly protected ; (2) when a woman, married after the passing of the Act, becomes entitled during marriage to personal property as next of kin, or to any sum not exceed-ing £200 under a deed or will, such property shall belong to her for her separate use; where real property descends to her as heiress of an intestate, the rents and profits thereof shall belong to her for her separate use; (3) in respect of property thus declared to be her " separate estate," she may sue in her own name; on the other hand, her husband is not liable for debts contracted by her before marriage, except to the extent to which he has received property in her right. Married women having separate estates are made liable for the maintenance of their husbands who may become charge-able to any union or parish, and of their children.

A married woman cannot make any contract binding on herself except as to separate estate. She can only bind Iter husband as his agent, but from the relation of the parties the fact of agency is easily implied. The strong-est case is that of a wife whose husband unjustifiably refuses to maintain her; in that case she is his agent, in the sense that he is bound by her contracts for NECESSARIES supplied to her. By the Act of 1870 she can insure her own or her husband's life for her separate use.

Law of Scotland.—The law of Scotland on this head differs less from English law than the use of a very different terminology would lead us to suppose. The phrase communio bonorum has been employed to express the interest which the spouses have in the movable property of both, but its use has been severely censured by a high authority as essentially inaccurate and misleading. Mr Patrick Fraser, in his elaborate and valuable treatise on Husband and Wife, contends that there is no real community of goods, and no partnership or societas between the spouses. The wife's mov-able property, with certain exceptions, and subject to special agreements, becomes as absolutely the property of the husband as it does in English law. The notion of a communio is, however, favoured by the peculiar rights of the wdfe and children on the dissolution of the marriage. Previous to the Act 18 & 19 Vict. c. 23 the law stood as follows. The fund formed by the movable property of both spouses may be dealt with by the husband as he pleases dur-ing life ; it is increased by his acquisitions and diminished by his debts. The respective shares contributed by husband and wife return on the dissolution of the marriage to them or their representa-tives if the marriage be dissolved within a year and a day, and with-out a living child. Otherwise the division is into two or three shares, according as children are existing or not at the dissolution of the marriage. On the death of the husband, his children take one-third (called legitim), the widow takes one-third (jus relictie), and the remaining one-third (the dead's part) goes according to his will or to his next of kin. If there be no children, they its relictse and the dead's part are each one-half. If the wife die before the husband, her representatives, whether children or not, are creditors for the value of her share. The statute above-mentioned, however, enacts that "where a wife shall predecease her husband, the next of kin, executors, or other representatives of such wife, whether testate or intestate, shall have no right to any share of the goods in communion; nor shall any legacy or bequest, or testamentary disposition thereof by such wife, affect or attach to the said goods or any portion thereof." It also abolishes the rule by which the shares revert if the marriage does not subsist for a year and a day. Two later Acts apply to Scotland the principlesof the English Married Women's Pro-perty Acts. These are the Act 40 & 41 Vict. c. 29, which protects the earnings, &c., of wives, and limits the husband's liability for antenup-tial debts of the wife, and the Act 43 & 44 Vict. c. 26, which enables a woman to contract for a policy of assurance for her separate use.

A wife's heritable property does not pass to the husband on marriage, but he acquires a right to the administration and profits. His courtesy, as in English law, is also recognized. On the other hand, a widow has a terce or liferent of a third part of the husband's heritable estate, unless she has accepted a conventional provision.

American Law.—In the American States, the revolt against the common law theory of husband and wife has been carried further than in England, and legislation tends in the direction of absolute equality between the sexes. '' What are familiarly known as the Married Women's Acts," says a recent writer, "the product of American legislation during the last quarter of a century, aim to secure to the wife the independent control of her own property, and the right to contract, sue, and be sued without her husband, under reasonable conditions" (Schouler's Law of Domestic Relations). Each State has, however, taken its own way and selected its own time for introducing modifications of the existing law, so that the legislation on this subject is now exceedingly complicated and difficult. Sehouler (op. cit, p. 212) gives an account of the general result in the different States, from which the following is condensed : —In Maine, a liberal right in married women of holding property independently of husband's control, which the wife may, however, relax by written instrument authorizing her husband to manage it; in New Hampshire, the right to hold from strangers, and from her husband (not in fraud of creditors), and to keep earnings when deserted ; in Vermont, similar result effected by the Chancery Courts without special legislation ; in Massachusetts, a liberal right to acquire separate property ; in Rhode Island, property exempt from husband's debts, but his control recognized ; in Connecticut, somewhat limited recognition of separate estate ; in New York, the most liberal provisions as to property held before or acquired after marriage —a complete emancipation from marital dominion ; a similar policy in the laws of New Jersey, Pennsylvania, and Maryland, effected in the last case by the courts rather than by statute ; in Ohio, general exemption of wife's estate from her husband's debts ; in Indiana, a peculiar policy, on the community system, wife's powers of transfer limited ; Illinois, Wisconsin, Minnesota, and Kansas follow closely the legislation of Massachusetts; in Iowa, limited recognition of wife's estate; in California, community of goods recognized after the Spanish system, formerly prevalent there,—so in Nevada ; in Oregon, wife's property exempt from husband's debts ; in Nebraska, liberal rights recognized in married women ; in Missouri, wife's property in land more particularly exempt from husband's debts ; in Kentucky, peculiar restraint on husband's marital rights ; in Tennessee, wife's property protected, but her right to control not recognized ; in Arkansas a liberal policy prevails. The Southern States have been later in taking up this movement, but it is considered likely that they will follow the rest. The peculiar system of Homestead Laws in the Southern and Western States (described in article HOMESTEAD) constitutes an inalienable provision for the wife and family of the householder. (E. R.)


Curtesy or courtesy has been explained by legal writers as " arising by favour of the law of England." The word has nothing to do with courtesy in the sense of complaisance.

The above article was written by: Edmund Robertson, K.C., M.A., LL.D., Barrister; late Fellow of Corpus Christi College, Oxford; Reader on Law to the Council of Legal Education; M.P. for Dundee from 1885; Civil Lord of the Admiralty, 1892-95; author of American Home Rule.

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