Background
Before 1870 in England, any money or property received by a married woman in her own name (either through a wage, from investment, by gift, or through inheritance) instantly became absorbed into the property of her husband, as did any property or money held by a woman at the time of her marriage. Thus, under the Common Law doctrine of coverture the identity of the wife became legally absorbed into that of her husband, effectively making them one person in respect of most matters concerned with the ownership and management of land, of payment for goods, and the obtaining of credit. [1]
Where a woman had brought a dowry into the marriage, simply as property, this would also be absorbed into her husband's ownership and control; except that the freehold title to any dowered land remained legally hers and it could not be sold by the husband without the consent of the wife. Should the wife survive her husband as a widow, any dowered land reverted to her ownership; and she might also have right to lifetime income from a third of the total value of her husband's estate [2] . However, dowered land could still be seized by the husband's creditors during the marriage for non-payment of his debts. From the 17th century onwrds however, dowries as property were commonly secured as a trust to the benefit of the offspring of the marriage in a 'separate estate' [3] . In this form the dowry provided by a bride's father was to be used for his daughter's financial support as 'pin money' throughout her married life and into her widowhood, and was also a means by which the bride's father was able to obtain from the bridegroom's father a financial commitment to the intended marriage and to the children resulting therefrom [4] . A dowry could also be applied to support primogeniture when effected by entail and a 'strict settlement' [5] .
Once a woman became married, she had no current claim to her property in Common Law, as her husband had full control and could do whatever suited him regarding the property: "Thus, a woman, on marrying, relinquished her personal property—moveable property such as money, stocks, furniture, and livestock—to her husband's ownership; by law he was permitted to dispose of it at will at any time in the marriage and could even will it away at death". [6] For example, any copyrighted material would have the copyright pass to the husband on marriage. Even in death, a woman's husband continued to have control over her former property. Before the Act was passed, women lost all Common Law ownership over their property when they became married: "From the early thirteenth century until 1870, English Common law held that most of the property that a wife had owned as a feme sole came under the control of the husband at the time of the marriage". [6] Nevertheless coverture was always recognised as a convenient legal fiction, and so was never applied absolutely; a wife's property could be seized by credtiors for her husband's unpaid debts, but a wife could not be tried for her husband's crimes. However, the Common Law is not the only law of England; and in other English bodies of law - especially Equity - other principles applied. English courts of Equity, particularly the Court of Chancery, became from the 17th century onwards increasingly amenable to allowing legal devices to evade or negate the perceived injustices of coverture [7] . Within English Law, the Common Law was concerned with real property and inheritance, and here coverture ruled; but courts of Equity were concerned with Wills and Trusts, and were very ready to allow these legal devices to be developed in ways that constrained unlimited control by a husband over their wives' goods, property and inheritance. This was spurred by a particularity of the status of women in the Common Law of England; "English property law was distinctive in two respects: first, married women under coverture were even more restricted than in the rest of Europe; second, single women enjoyed a position unique in Europe as legal individuals in their own right, with no requirement for a male guardian" [8] . As a 'feme sole' the legal status of an unmarried woman or widow in England did not differ from that of a man. In circumstances of high adult mortality, many women passed between the status of 'feme sole' and 'feme covert' through successive marriages and widowhoods over an extended period. Many women, at all levels of society, were consequently very concerned to find ways of maintaining effective ownership in a subsequent marriage, of property and dowry that they had brought from a previous marriage; and they had the money to pay lawyers to find legal ways of doing so, and sympathetic courts willing to accommodate them.
Amy Erickson presents the evidence for the legal outcomes [9] , noting that legally enforceable devices to moderate or evade coverture are observed in around 10% of English marriages in the Early Modern period. In more humble marriages these relied on creating nominal bonds secured against dowered property to protect it from being seized by creditors; but where considerable degrees of property were involved, then a Trust would be established before marriage in which the bride's property was held as a 'separate estate' out of the control of her husband [10] . But although this could ensure that property brought into a marriage would not be misused by an improvident or incompetent husband; these arrangements had disadvantages for the wife
- the wife's separate estate was now under the control of trustees, not the wife herself. The trustees might well not be amenable to acting the way the wife wanted;
- the prime purpose of the trust was to deliver the property complete to its eventual owners - the offspring of the marriage. Consequently the wife would commonly have access to income not the capital itself;
- much depended on the discretion allowed to the wife in the terms of the trust; especially whether, were there no surviving offspring, she might direct the distribution of the separate estate by will;
- arrangements for the control of the separate estate functioned better in respect of funds held in interest-bearing securities, rather than land. In landed property - the core business of the Common Law - coverture was more difficult to evade;
- the trustees - usually the family lawyers for the wife's parents - would take fees from administering the separate estate; so these devices could only be feasible where significant sums of money were being settled;
- Separate estates were most easily established prior to a daughter's first marriage - and the practice became effectively universal in even relatively modestly propertied families. If a wife received an inheritance in the course of her marriage, the testator could specify that this should be conveyed into her separate estate; but otherwise such a legacy would come to the husband through coverture. The wife might seek to have the Court of Chancery create a separate estate on her behalf during a marriage. However, the legal costs involved in doing so made this unavailable to the vast majority of the population. [11]
Married women had few legal rights in the Common Law; and those that they did have - as in the right for support and maintenance at their husband's expense - were not easily enforceable. Wives were by Common Law not recognized as being a separate legal being – a feme sole . In contrast, single and widowed women were considered in Common Law to be femes sole, and they already had the right to own property in their own names. Once a woman became married, she still had the right to legally own her land or house but she no longer had the right to do anything with it, such as rent out a house that she owned or sell her piece of land: "Thus, a wife retained legal ownership of her real property—immovable property such as housing and land, but she could not manage or control it; she could not sell her real property, rent it, or mortgage it without her husband's consent". [12] She could not make contracts without his approval. Nor could she sue or be sued in a court of law.
Women started to try to get the act passed in the 1850s; a group of women had campaigned for the law to be amended with no success. One important woman taking up the cause was Barbara Bodichon (1827–1891). She promoted women's rights and in 1854 published A Brief Summary of the Laws in England concerning Women: together with a few observations thereon. She worked hard to reform the married women's property laws. As an artist, she also helped establish the Society for Female Artists in 1857. In 1865, she founded the women-only Kensington Society, for which she wrote Reasons for the Enfranchisement of Women in 1866. [13] She was also an intimate friend of George Eliot (the pen name of Mary Ann Evans), who wrote Middlemarch .
In 1868, efforts to get the act passed were revived; in that year, a Married Women's Property Bill was introduced into parliament, which proposed that married women should have the same property rights as unmarried women. [14] A long and energetic campaign by women's groups and some men led to the passing of this Act.
The Married Women's Property Act 1870 provided that wages and property which a wife earned through her own work or inherited would be regarded as her separate property and by the Married Women's Property Act 1882, this principle was extended to all property, regardless of its source or the time of its acquisition. [15] The Act also protected a woman not only from her husband gaining control of her property but also from people that worked for him, his creditor, "These acts generally exempted married women's property from attachments by creditors of their husbands". [16]
This gave married women a separate statutory estate and released them from coverture. It was for the first time theoretically possible for married women to live away from their husbands and support children. Widowed women with children, as femes soles, had already had the right to own property and support their children.
