Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

A wife may act in a representative capacity as agent for her husband, or for other persons, and may execute a power conferred on her by deed or will. She may also be appointed to act as executor, administrator or guardian, though under the common law theory her husband's consent was needful to her acceptance of any of these undertakings.

The common law relations of husband and wife have been greatly changed by statute since about 1844. "It is now," says Peck, "the usual rule of law throughout the United States, established in each state by its own statutes that the wife retains title to the property owned by her before marriage or acquired by her during the marriage, and the right to manage, use or sell it, without the concurrence of her husband. The right to contract, and to sue and be sued, naturally follows from her ownership and control of her property; in most of the states these rights are expressly conferred by statute; and in some they have been held to result by necessary implication."

The husband is generally relieved from liability for her debts or for her torts, except for such debts as are for her support or that of the family, or are within her express or implied agency to act for him. The common law estate of dower and curtesy are retained in some of the states, in the larger number they are materially modified by statute, or wholly abolished and replaced by a right of succession to each other's property as defined by statute.

The distinctive duties resting on a husband are to provide a home, to support his wife and children, to protect her and them from injury or insult. Thus a husband has the same right to protect his wife, to assert and maintain her rights, even to kill a person, if necessary in her defense, that he would have in his own behalf.

The duty of a husband to provide a home implies his right to select and fix the marital abode. The wife must live with him, and a refusal on her part to live in the home provided by him would constitute her a deserter. But he must select a home in good faith and in reasonable accordance with his means and their accustomed mode of life.

It is his duty to maintain order and law in his household. He is therefore liable to prosecution should his wife carry on the illegal sale of liquor, or in other ways defy the law.

A husband cannot chastise his wife, but he may use force to restrain her from committing a violent criminal wrong. Says a competent author: "That depends rather on the right of every one to use reasonable efforts to prevent violence and crime than on any peculiar power of the husband over the wife, and it would also justify like restraint of the husband by the wife."

It is the duty of the wife to assist in the maintenance of the family by such reasonable labor as the necessities of the family and their circumstances in life and financial position require; while the husband has no right to require her to do more than to care for the house and the family in the customary and proper manner. He cannot compel her to engage in business, to work for wages, nor to work for him in his business. The services of any kind which either may render to the other, or for the family, are rendered in consideration of the marriage relation, and of the mutual benefit received therefrom and neither has any right of action against the other for them.

It should be noted that the legislative revolution for the benefit of married women has chiefly affected the property relations of husband and wife, while their personal rights remain quite as before. Probably no single rule of the common law was so bitterly resented and so difficult to defend, as the vesting in the husband of the sole guardianship of their children. By statute in many states both parents are made guardian of them, and if they separate, the welfare of the children is regarded as the decisive question in fixing their guardianship, rather than the superior right of either parent.

A husband and wife by the modern law may agree to live separately. The arrangement in some states is effected through a trustee, in others this may be done by the parties themselves. By this the parties may agree on the disposition and division of their property when this can be done freely and intelligently. A separation agreement made through fear of her husband cannot be sustained.