# 1911 Encyclopædia Britannica/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 person chiefly affected is the wife, who probably in all political 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 consequences, 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 Manus. 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 subject members of the family, whether wife or children, had, broadly speaking, no rights of their own. 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 on her husband’s death 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 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 distance between the two modes of marriage 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 preference to the treasury. It seems doubtful how far she had, during the continuance of marriage, a legal right to enforce 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 continuance 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 influence. During the marriage the husband had the administration of the property.
The manus of the Roman law appears to be only one instance of an institution common to all primitive societies. 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 principle 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 acquired during the marriage, but not to such immovable property 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 moieties between the survivor and the heirs of the deceased.
Law of England.—The English common law as usual followed its own course in dealing with this subject, and in no department were its rules more entirely insular and independent. The text writers all assumed two fundamental principles, which between them established a system of rights totally unlike that just described. Husband and wife were said to be one person in the eye of the law—unica persona, quia caro una et sanguis unus. Hence a man could not grant or give anything to his wife, because she was himself, and if there were any compacts between them before marriage they were 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, was one-sided only; it was the wife who was merged in the husband, not the husband in the wife. And when the theory did not apply, the disabilities of “coverture” suspended the active exercise of the wife’s legal faculties. The old technical phraseology described husband and wife as baron and feme; the rights of the husband were baronial rights. From one point of view the wife was merged in the husband, from another she was 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 became vested in the husband and herself during the coverture, and he had the management and the profits. If the wife had been in actual possession at any time during the marriage of an estate of inheritance, and if there had been a child of the marriage capable of inheriting, then the husband became 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 did not extend, and the wife’s heir at last succeeded to the inheritance. The wife could not 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 consented to the deed.
With regard to personal property, it passed absolutely at common law to the husband. Specific things in the possession of the wife (choses in possession) became the property of the husband at once; things not in possession, but due and recoverable from others (choses in action), might be recovered by the husband. A chose in action not reduced into actual possession, when the marriage was dissolved by death, reverted to the wife if she was the survivor; if the husband survived he could obtain possession by taking out letters of administration. A chose in action was to be distinguished from a specific thing which, although the property of the wife, was for the time being in the hands of another. In the latter case the property was in the wife, and passed at once to the husband; in the former the wife had a mere jus in personam, which the husband might enforce if he chose, but which was still capable of reverting to the wife if the husband died without enforcing it.
The chattels real of the wife (i.e., personal property, dependent on, and partaking of, the nature of realty, such as leaseholds) passed 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 did not bar the wife’s interest; but any disposition inter vivos by the husband was valid and effective.
The courts of equity, however, greatly modified the rules of the common law by the introduction of the wife’s separate estate, 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 might be enjoyed had taken the Court of Chancery many generations to develop. No particular form of words was necessary to create a separate estate, and the intervention of trustees, though common, was not necessary. A clear intention to deprive the husband of his common law rights was sufficient to do so. In such a case a married woman was 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 was afterwards held that any engagements, clearly made with reference to the separate estate, would bind that estate, exactly as if the woman had been a feme sole. Connected with the doctrine of separate use was the equitable contrivance of restraint on anticipation with which later legislation has not interfered, whereby property might be so settled to the separate use of a married woman that she could not, during coverture, alienate it or anticipate the income. No such restraint is recognized in the case of a man or of a feme 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 for her and her children out of the fund sought to be recovered. 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.” Two other property interests of minor importance are recognised. The wife’s pin-money is a provision 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 by her husband for the purpose of being worn by her, but not as her separate property. The husband 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 paraphernalia. She may also on the death of the husband claim paraphernalia, provided all creditors have been satisfied, her right being superior to that of any legatee.
The corresponding interest of the wife in the property of the husband is much more meagre and illusory. Besides a general right to maintenance at her husband’s expense, she has at common law a right to dower (q.v.) 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, 1874, 1882 (which repealed and consolidated the acts of 1870 and 1874), 1893 and 1907 introduced very considerable changes. The chief provisions of the Married Women’s Property Act 1882, which enormously improved the position of women unprotected by marriage settlement, are, shortly, that a married woman is capable of acquiring, holding and disposing of by will or otherwise, any real and personal property, in the same manner as if she were a feme sole, without the intervention of any trustee. The property of a woman married after the beginning of the act, whether belonging to her at the time of marriage or acquired after marriage, is held by her as a feme sole. The same is the case with property acquired after the beginning of the act by a woman married before the act. After marriage a woman remains liable for antenuptial debts and liabilities, and as between her and her husband, in the absence of contract to the contrary, her separate property is deemed primarily liable. The husband is only liable to the extent of property acquired from or through his wife. The act also contained provisions as to stock, investment, insurance, evidence and other matters. The effect of the act was to render obsolete the law as to what created a separate use or a reduction into possession of choses in action, as to equity to a settlement, as to fraud on the husband’s marital rights, and as to the inability of one of two married persons to give a gift to the other. Also, in the case of a gift to a husband and wife in terms which would make them joint tenants if unmarried, they no longer take as one person but as two. The act contained a special saving of existing and future settlements; a settlement being still necessary where it is desired to secure only the enjoyment of the income to the wife and to provide for children. The act by itself would enable the wife, without regard to family claims, instantly to part with the whole of any property which might come to her. Restraint on anticipation was preserved by the act, subject to the liability of such property for antenuptial debts, and to the power given by the Conveyancing Act 1881 to bind a married woman’s interest notwithstanding a clause of restraint. The Married Women’s Property Act of 1893 repealed two clauses in the act of 1882, the exact bearing of which had been a matter of controversy. It provided specifically that every contract thereinafter entered into by a married woman, otherwise than as an agent, should be deemed to be a contract entered into by her with respect to and be binding upon her separate property, whether she was or was not in fact possessed of or entitled to any separate property at the time when she entered into such contract, that it should bind all separate property which she might at any time or thereafter be possessed of or entitled to, and that it should be enforceable by process of law against all property which she might thereafter, while discovert, be possessed of or entitled to. The act of 1907 enabled a married woman, without her husband, to dispose of or join in disposing of, real or personal property held by her solely or jointly as trustee or personal representative, in like manner as if she were a feme sole. It also provided that a settlement or agreement for settlement whether before or after marriage, respecting the property of the woman, should not be valid unless executed by her if she was of full age or confirmed by her after she attained full age. The Married Women’s Property Act 1908 removed a curious anomaly by enacting that a married woman having separate property should be equally liable with single women and widows for the maintenance of parents who are in receipt of poor relief.
The British colonies generally have adopted the principles of the English acts of 1882 and 1893.
Law of Scotland.—The law of Scotland 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 as essentially inaccurate and misleading. It has been contended that there was no real community of goods, and no partnership or societas between the spouses. The wife’s movable property, with certain exceptions, and subject to special agreements, became as absolutely the property of the husband as it did in English law. The notion of a communio was, however, favoured by the peculiar rights of the wife and children on the dissolution of the marriage. Previous to the Intestate Movable Succession (Scotland) Act 1855 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 during 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 representatives if the marriage be dissolved within a year and a day, and without 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 relictae), and the remaining one-third (the dead part) goes according to his will or to his next of kin. If there be no children, the jus relictae 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. Several later acts apply to Scotland some of the principles of the English Married Women’s Property Acts. These are the Married Women’s Property (Scotland) Act 1877, which protects the earnings, &c., of wives, and limits the husband’s liability for antenuptial debts of the wife, the Married Women’s Policies of Assurance (Scotland) Act 1880, which enables a woman to contract for a policy of assurance for her separate use, and the Married Women’s Property (Scotland) Act 1881, which abolished the jus mariti.
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 life-rent of a third part of the husband’s heritable estate, unless she has accepted a conventional provision.
Continental Europe.—Since 1882 English legislation in the matter of married women’s property has progressed from perhaps the most backward to the foremost place in Europe. By a curious contrast, the only two European countries where, in the absence of a settlement to the contrary, independence of the wife’s property was recognized, were Russia and Italy. But there is now a marked tendency towards contractual emancipation. Sweden adopted a law on this subject in 1874, Denmark in 1880, Norway in 1888. Germany followed, the Civil Code which came into operation in 1900 (Art. 1367) providing that the wife’s wages or earnings shall form part of her Vorbehaltsgut or separate property, which a previous article ​(1365) placed beyond the husband’s control. As regards property accruing to the wife in Germany by succession, will or gift inter vivos, it is only separate property where the donor has deliberately stipulated exclusion of the husband’s right.
In France it seemed as if the system of community of property was ingrained in the institutions of the country. But a law of 1907 has brought France into line with other countries. This law gives a married woman sole control over earnings from her personal work and savings therefrom. She can with such money acquire personalty or realty, over the former of which she has absolute control. But if she abuses her rights by squandering her money or administering her property badly or imprudently the husband may apply to the court to have her freedom restricted.
American Law.—In the United States, the revolt against the common law theory of husband and wife was carried farther than in England, and legislation early tended in the direction of absolute equality between the sexes. 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. James Schouler (Law of Domestic Relations) gives an account of the general result in the different states to which reference may be made. The peculiar system of Homestead Laws in many of the states (see Homestead and Exemption Laws) constitutes an inalienable provision for the wife and family of the householder.