Marriage, As It Was, As It Is, and As It Should Be: A Plea for Reform

by Annie Besant

If a woman own land and lease it, then if, during marriage, the husband reduce it into possession, "as where rent accruing on a lease granted by the wife dum sola is received by a person appointed for that purpose during the husband's life," under such circumstances the husband's "executors, not his widow, must sue the agent" (Lush's "Common Law Practice," 2nd. ed., p. 27). In a case where "certain leasehold property was conveyed to trustees upon trust to permit the wife to receive the rents thereof to her sole and separate use, and she after marriage deposited with her trustees part of such rents and died; it was held that her husband might recover the same in an action in his own right. Such money, so deposited, was not a chose in action belonging to the wife, but money belonging to the husband, the trust having been discharged in the payment of the rents to the wife" (Ibid, p. 9 7 ). Marriage, to a man, is regarded as a kind of lucrative business: "The next method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property, and with the same powers, as the wife, when sole, had over them... A distinction is taken between chattels real and chattels personal, and of chattels personal, whether in possession or reversion, or in action. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and nay, if he pleases, sell, surrender, or dispose of it during the coverture; if he be outlawed or attainted, it shall be forfeited to the king; it is liable to execution for his debts; and if he survives his wife, it is to all intents and purposes his own. Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will: for, the husband having made no alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her ancient possession, and it shall not go to his executors. If, however, the wife die in the husband's lifetime, the chattel real survives to him. As to chattels personal (or choses) in action, as debts upon bonds, contracts, and the like, these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law. And upon such receipt or recovery they are absolutely and entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But, if he dies before he has recovered or reduced them into possession, so that, at his death, they still continue choses in action, they shall survive to the wife; for the husband never exerted the power he had of obtaining an exclusive property in them. If the wife die before the husband has reduced choses in action into possession, he does not become entitled by survivorship; nevertheless, he may, by becoming her administrator, gain a title. Chattels in possession, such as ready money and the like, vest absolutely in the husband, and he may deal with them, either whilst living, or by his will, as he pleases. Where the interest of the wife is reversionary, the husband's power is but small; unless it falls into possession during the marriage, his contracts or engagements do not bind it" ("Comm, on the Laws of England," Broom and Hadley, vol. ii., pp. 618, 619). So highly does the law value the claims of a husband that it recognizes them as existing even before marriage; for if a woman who has contracted an engagement to marry dispose of her property privately, settle it on herself, or on her children, without the cognizance of the man to whom she is engaged, such settlement or disposition may be set aside by the husband as a fraud.

So cruel, as regards, property, was felt to be the action of the common law, that the wealthy devised means to escape from it, and women of property were protected on their marriage by "marriage settlements," whereby they were contracted out of the law. A woman's property was by this means, "settled on herself;" it was necessary to treat her as incapable, so her property was not in her own power but was vested in trustees for her separate use; thus che principal, or the estate, was protected, but the whole interest or rental, as before, could be taken by the husband the moment it was received by the wife; her signature became necessary to draw it, but the moment it came into her possession it ceased to be hers. The next step was an attempt to protect women's money in their own hands; terrible cases of wrong were continually arising: men who deserted their wives, and left them to maintain the burden of a family, came back after the wife had accumulated a little property, sold the furniture, pocketed the proceeds, and departed, leaving the wife to recommence her labours. Orders of protection were given by magistrates, but these were not found sufficient. At last, parliamentary interference was called for with an urgency that could no longer be resisted, and a Bill to amend the laws relating to married women's property was introduced into the House of Commons. How sore was the need of such amendment may be seen from the following extracts:—

Mr. Russell Gurney, in moving (April 14, 1869) the second reading of the Bill, observed: "It is now proposed that, for the first time in our history, the property of one half of the married people of this country should receive the protection of the law. Up to this time the property of a wife has had no protection from the law, or rather, he should say, in the eye of the law it has had no existence. From the moment of her marriage the wife, in fact, possesses no property; whatever she may up to that time have possessed, by the very act of marriage passes from her, and any gift or bequest made to her becomes at once the property of the husband. Nay, Even that which one might suppose to be her inalienable right, the fruit of her mental or bodily toil, is denied her. She may be gifted with powers which enable her to earn an ample fortune, but the moment it is earned, it is not hers,' it is her husband's. In fact, from the time of her entering into what is described as an honourable estate, the law pronounces her unfit to hold any property whatever."

Mr. Jessel (now Master of the Rolls) in seconding the motion, in the course of an able and impassioned speech, said: "The existing law is a relic of slavery, and the House is now asked to abolish the last remains of slavery in England. In considering what ought to be the nature of the law, we cannot deny that no one should be deprived of the power of disposition, unless on proof of unfitness to exercise that power; and it is not intelligible on what principle a woman should be considered incapable of contracting immediately after she has, with the sanction of the law, entered into the most important contract conceivable. The slavery laws of antiquity are the origin of the common law on this subject. The Roman law originally regarded the position of a wife as similar to that of a daughter who had no property, and might be sold into slavery at the will of her father. When the Roman law became that of a civilised people, the position of the wife was altogether changed.... The ancient Germans—from whom our law is derived—put the woman into the power of her husband in the same sense as the ancient Roman law did. She became his slave. The law of slavery—whether Roman or English—for we once had slaves and slave-laws in England—gave to the master of a slave the two important rights of flogging and imprisoning him. A slave could not possess property of his own, and could not make contracts except for his master's benefit, and the master alone could sue for an injury to the slave; while the only liability of the master was that he must not let his slave starve. This is exactly the position of the wife under the English law; the husband has the right of flogging and imprisoning her, as may be seen by those who read Blackstone's chapter on the relations of husband and wife. She cannot possess property—she cannot contract, except it is as his agent; and he alone can sue if she is libelled or suffers a personal injury; while all the husband is compellable to do for her is to pay for necessaries. It is astonishing that a law founded on such principles should have survived to the nineteenth century."

A quotation from a later debate finds its fit place here: Mr. Hinde Palmer, in moving (February 19, 1873) the second reading of the Married Woman's Property Act (1870) Amendment Bill, pointed out that the common law was, that by marriage "the whole of a woman's personal property was immediately vested in her husband, and placed entirely at his disposal. By contracting marriage, a woman forfeited all her property. In 1868, the Chancellor of the Exchequer, Mr. Lowe, said: 'Show me what crime there is in matrimony that it should be visited by the same punishment as high treason—namely, confiscation, for that is really the fact.' Mr. Mill, too, speaking on that question, said that a large portion of the inhabitants of this country were in the anomalous position of having imposed on them, without having done anything to deserve it, what we inflicted on the worst criminals as a penalty: like felons, they were incapable of holding property."

Some great and beneficial changes were made by the Acts of 1870 and 1873, although much yet remains to be done. By the Act of 1870, the wages and earnings of married women were protected; they were made capable of depositing money in the savings' banks in their own names; they might hold property in the Funds in their own names, and have the dividends paid to them; they might hold fully-paid up shares, or stock, to which no liability was attached; property in societies might be retained by them; money coming to a married woman as the next-of-kin, or one of the next-of-kin to an intestate, or by deed or will, was made her own, provided that such money did not exceed £200; the rents and profits of freehold, copyhold, or customary-hold property inherited by a married woman were to be her own; a married woman might insure her own or her husband's life; might, under some circumstances, maintain an action in her own name; married women were made liable for the maintenance of their husbands and children. The Act of 1873 relates entirely to the recovery of debts contracted by the woman before marriage. It will be perceived that these Acts are very inadequate as regards placing married women in a just position towards their property, but they are certainly a step in the right direction. The Acts only apply to those women who have been married subsequently to their passing.

One great omission in them will have to be promptly remedied, both for the sake of married women and for the sake of their creditors: while a married woman now may, under some circumstances, sue, no machinery is provided whereby she may be sued—without joining her husband.

In an admirable letter to the Times of March 14, 1878, Mrs. Ursule Bright, alluding to the "obscurity and uncertainty of the law," points out "The effect of that obscurity upon the credit of respectable married women earning their own and their children's bread, in any employment or business carried on separately from their husband; the inconvenience and risk to their creditors is, as you have most ably pointed out, great; but the injury to honest wives is far greater. It puts them at a considerable disadvantage in the labour market and in business. A married woman, for instance, keeping a little shop, may sue for debts due to her, but has no corresponding liability to be sued. If the whereabouts of the husband is not very clearly defined, it is evident she may have some difficulty in obtaining credit.

"Again, what employer of labour can with any security engage the services of a married woman? She may leave her work at the mill at an hour's notice unfinished, and her employer has no remedy against her for breach of contract, as a married woman can make no contract which is legally binding. There is no question that such a state of the law must operate as a restriction upon her power to support herself and family.

"The state of muddle of the present law is almost inconceivable. Even now a woman need not pay her debts contracted before marriage out of earnings made after marriage. Suppos an artist or a literary woman to marry when burdened with debts and having no property; should she be earning £1,000 or £10,000 a year by her profession after marriage, these earnings could not be made liable for her debts contracted before marriage."