Property Rights of Women in Nineteenth-Century England
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The property rights of women during most of the nineteenth century were dependent upon their marital status. Once women married, their property rights were governed by English common law, which required that the property women took into a marriage, or acquired subsequently, be legally absorbed by their husbands. Furthermore, married women could not make wills or dispose of any property without their husbands' consent. Marital separation, whether initiated by the husband or wife, usually left the women economically destitute, as the law offered them no rights to marital property. Once married, the only legal avenue through which women could reclaim property was widowhood. Women who never married maintained control over all their property, including their inheritance. These women could own freehold land and had complete control of property disposal. The notoriety of the 1836 Caroline Norton Case highlighted the injustice of women's property rights and influenced parliamentary debates to reform property laws. The women's movement generated the support which eventually resulted in the passage of the Married Women's Property Law in 1882. England's mid-nineteenth century focus on married women's property rights culminated in the transformation of the subordinate legal status of married women.
The property owned by women in Victorian England was usually inherited from fathers. To protect the status of their daughters, most fathers included them in the distribution of the patrimony, however, the type of property inherited by sons and daughters differed. Amy Louise Erickson notes that "Fathers normally gave their daughters shares comparable in value with those of their brothers, although girls usually inherited personal property and boys more often inherited real property" (19). The more valuable real property inherited by the sons refers to freehold land, which is the actual land. Personal property referred to copyhold land, which was usually a mansion and its land held by a lord at will, and leasehold land, which was leased to individuals for life. Therefore, copyhold and leasehold land were legally secured for the life of the tenant or longer, depending on the agreement. Real property also included clothing, jewelry, household furniture, food, and all moveable goods. However, social customs held that household property and equipment belonged to the women.
According to Susan Staves, the personal property inherited by women was more vulnerable to loss in contrast to the more secure land holdings inherited by men (219).
In the absence of a will or specification of land distribution, the rules of primogeniture were invoked, giving the oldest son the rights to all real property. Erickson explains that "primogeniture was applied more harshly in England" than elsewhere in Europe and was "objected to more frequently by younger sons rather than daughters" (71). Daughters inherited real property only in the absence of a son, and it was held jointly between sisters. In the absence of a son, "the law preferred a daughter to a collateral male" in England, unlike most of Europe, according to Erickson (27). England's primogeniture laws remained intact until 1925. Although sons were entitled to a more substantial inheritance, daughters were beneficiaries of minimal or limited property distribution.
Unmarried women, legally identified as feme sole, had complete legal control of their own property. They had the right to dispose of their property and only used the assistance of a legal guardian if they chose. The distribution of property in unmarried women's wills differed from men's in that that these women gave preferences to their female relatives in dividing their property (Erickson 19). This allowed female members of the family to live more comfortably, as women were more susceptible to a life of poverty. Unmarried women maintained control of their property as long as they remained unmarried.
However, whatever the distribution, the property which women took into marriage, whether in goods, money, or land, passed into the ownership of their husbands, which was dictated by common law doctrine of coverture. This law also dictated that when women married, their legal personalities were subsumed into their husbands' (Shanley 8). Therefore, after marriage, women had no control of property disposal or distribution. Anne Laurence notes, "In English common law, wives could hold no freehold land (real property) except through their husbands; nor could they alter or dispose of property without their husbands' consent, even if it was their own inheritance" (228). In response to the accusations of the injustice of property laws, lawmakers claimed that "The rights of the husband over the property of his wife are given him in consequences of the burthens which on the marriage are imposed on the husband in respect to his wife" (Staves 52). A digest of the common law states, "After marriage, all the will of the wife in judgment of the law is subject to the will of the husband; and it is commonly said a feme coverte hath no will" (Laurence 227). The term feme coverte is the common law term for wife, and "wife" is the only status entered for women in the common law. The rationale of the law is that if husband and wife are "one body" before God, they are "one person" in the law, and that person is represented by the husband (Shanley 8). In recognition of this law, fathers often provided their daughters with dowries to protect them from unscrupulous husbands. Prenuptial marriage settlements provided a means for separate "pin" money to be put in trust for a bride in order to provide her with income. Pin money is an estate which the wife was to possess for her sole and separate use and was not subject to the control of her husband (Staves 133). This dowry was the only separate property that married women could own and control in accordance with the law of coverture. Furthermore, married women were legal as well as economic non-entities.
The legal status of married women prevented them from unilaterally participating in the civil legal system. Shanley explains that "From the legal 'unity' of the husband and wife it followed that a married woman could not sue or be sued unless her husband was also a party to the suit, could not sign contracts unless her husband joined her" (8). The law of coverture also governed women's premarital legal contracts. Laurence notes, "English common law did not recognize pre-nuptial contracts; all contracts made by a woman were annulled by her marriage" (233). Furthermore, married women lost the right to execute their own wills since legally all their property belonged to their husbands. With their husbands' consent, women executed wills to dispose of their personal property.
The laws that allowed married women to recapture property rights through widowhood were revised in the early nineteenth century. Once widowed, women were entitled to a dower, which was usually equivalent to one third of the husband's estate. The dower is the portion of the deceased husband's estate that his widow inherited for life. This inheritance did not represent a return of property that had been brought by women into the marriages. Women's dower rights during the eighteenth century were restricted by common law. Staves states, "Dower only attaches to what is considered real property" (29). Dower rights regarding real property changed to reflect economic changes in England. According to Susan Staves, "New commodities like stock and bank annuities replace land as major ingredients of wealth, and the law of dower changes to reflect this, limiting widows' rights to land but giving them equivalents in newer forms of wealth" (32). The Dower Act of 1833 ultimately proved to favor men's property rights. Staves notes, "Its enactment allowed legal intellectuals to feel that they had corrected an error but preserved for individual women no socially enforced rights; an individual woman got nothing except what her own husband privately elected to bestow" (49). This change was viewed as an erosion of women's property rights as widows were only entitled to an equitable jointure of their husband's estate. Jointure assignments were an arrangement by which a husband settles property on his wife for her use after his death. The assignment of jointures deprived widows of legal rights over their husband's estates and allowed the valuable real property, which was land, to be left to male heirs. Estates in jointure were no longer required to be an estate in freehold land. Furthermore, men found other ways to defraud women of dower rights. Men in contemplation of marriage could and often did convey their property to trustees in order to, as they said, "avoid the inconvenience of dower attaching and for other purposes" (Staves 49). Widows usually received substantially less valuable property than male heirs. However, unlike married women, they exercised control over the property and its disposal through wills.
Although widows were prevented from amassing great amounts of wealth, through their repositioned legal status of feme sole, they reclaimed legal power over their property. Widows were free to manage and establish businesses and to secure freehold land. Widows who remarried also had legal rights to prevent husbands from attaching themselves to the women's property. This autonomy made widows less economically desirable than unmarried women because "The growing sophistication of the trustee system . . . gave a widow greater ability to protect from being squandered by her second husband for his own benefit" (Staves 216). Most widows who remarried were interested in protecting their property, especially on behalf of their children from their first marriage. Erickson confirms that remarrying widows who had property or children from their previous marriages used premarital settlements as a device which was recognized and enforceable in law in order to protect their interest. (234). Widowed women, like their unmarried counterparts, also gave special consideration to female relatives in conveyance of their property. Although widows maintained more autonomy than married women regarding property rights, unhappy or abused women who sought refuge from marriage through separation completely forfeited rights to their husband's financial support and property.
The Caroline S. Norton case attracted attention to the severe economic penalties which women endured when they separated from their husbands. Mrs. Norton was a popular poet, novelist, and a beautiful English socialite who attempted to separate from her husband in 1836. After leaving her marital home, her husband prevented her from seeing their three sons and severed her financial support. After her husband's unsuccessful attempt to prove her guilty of an adulterous affair, Caroline filed for divorce on the ground of cruelty. Her claim was rejected, as English law did not recognize cruelty as just cause for divorce. Caroline Norton had no rights to sue for divorce, and could not force her husband to maintain her financial support. She was also unable to gain access to any of the marital property. Abandoned financially by her husband, Caroline Norton began writing to support herself. However, because she was still married, her husband was legally able secure much of her earnings for himself. According to Dorothy M. Stetson, Mrs. Norton "suffered all of the worst fates of a feme coverte as a result of her separation. Her husband exercised his legal right to deny her visits to her children" (31). The Caroline Norton case spotlighted the injustice of married women's property rights in England.
Caroline Norton proved to be a catalyst for changing women's property rights laws in Victorian England. Caroline Norton was determined to use her personal misfortune and suffering to gather support for legal reform. She gathered attention and support for her cause through the publication of many pamphlets and the influence of her friends in Parliament. Stetson notes that in 1855, Caroline Norton published her most important pamphlet: A Letter to the Queen on Lord Chancellor Cranworth's Marriage and Divorce Bill, in which she reviewed the position of married women under English law:
1. a married woman has no legal existence whether or not she is living with her husband;
2. her property is his property;
3. she cannot make a will, the law gives what she has to her husband despite her wishes or his behavior;
4. she may not keep her earnings;
5. he may sue for restitution of conjugal rights and thus force her, as if a slave to return to his home;
6. she is not allowed to defend herself in divorce;
7. she cannot divorce him since the House of Lords in effect will not grant a divorce to her;
8. she cannot sue for libel;
9. she cannot sign a lease or transact business;
10. she cannot claim support from her husband, his only obligation is to make sure she doesn't land in the parish poorhouse if he has means;
11. she cannot bind her husband to any agreement.
In short, as her husband, he has the right to all that is hers; as his wife she has no right to anything that is his. (33)
Caroline Norton, along with other feminist writers, helped to promote support for change in property rights for women.
In 1857, The Divorce and Matrimonial Causes Act was passed, establishing new divorce and matrimonial property laws. Along with removing divorce matters from the control of Parliament and the ecclesiastical courts, it also secured some property rights for married women. The Act was not intended to change the financial status of married women, only to grant property rights to wives who were separated from their husbands. Stetson says, "Upon the judgment of legal separation, the married woman immediately assumed the property rights and status of a single woman or feme sole, equal with men, as long as she remained apart from her husband" (19). It is important to note that the judgment, which reestablished a legal status of feme sole to married women allowing for the rights to earning, savings, and investments, was only granted to deserted wives. However, the act maintained men's legal rights to all marital property. Although the changes in law only slightly shifted to affect women's property rights, it elevated separated married women to the same legal standing as their husbands regarding lawsuits for contract and tort. Since The Divorce and Matrimonial Causes Act did not affect the rights of women who were living with their husbands, or those who were left by their husbands but not officially deserted, feminists continued to demand equal rights for married women.
The English women's rights movement continued to intensify the campaign for married women's property rights. As Stetson explains, The 1857 Divorce Act only protected a small number of women; "It soon became clear that these small concessions . . . would not be enough to even answer the worst hardship cases. The act did not affect wives living with their husbands (56). The demands for reform continued, and resulted in the passing of The Married Women's Property Act in 1870. However, this act was criticized as it, "was fraught with compromise and contradiction: it allowed women to keep possession only of their earnings and to inherit personal property and small sums of money; everything else, whether acquired before marriage or after, belonged to the husband" (Helsinger, Sheets, and Veeder 21). Although women were not granted all the property rights they demanded, the Act did represent an advance. The government resisted granting any significant rights to women and the few rights they granted came slowly and sporadically. Trevor May indicates that "Between 1857 and 1882 eighteen Married Women's Property Bills were introduced in Parliament" (276). In 1882, the twenty-seven year campaign for women's property rights culminated in the Married Women's Property Act of 1882. The Act, according to Stetson, "altered the common law doctrine of coverture to include the wife's right to own, buy, and sell her separate property" (90). This act obligated the courts to recognize a husband and a wife as two separate legal entities.
England's nineteenth century is signified by major reforms in the subordinate legal status of women. The women's movement waged a long-term campaign to create more equity within the English laws that included rights to education and suffrage as well as property rights. Initially, this resulted in minor reforms of divorce and property laws. Despite the fact that some legally separated women were granted more power over property than was previously allowed the new laws did not protect the overwhelming majority of married women. Unfortunately, the legal system and individual men attempted to maintain the status quo of keeping women firmly subordinate. It was not until 1882 that married women were able to exercise separate rights over their inheritance, earnings and property.
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