Coverture
Coverture was a legal doctrine in English common law under which a married woman's legal existence was considered to be merged with that of her husband. Upon marriage, she had no independent legal existence of her own, in keeping with society's expectation that her husband was to provide for and protect her. Under coverture a woman became a feme covert, whose legal rights and obligations were mostly subsumed by those of her husband. An unmarried woman, or feme sole, retained the right to own property and make contracts in her own name.
Coverture became well-established in the common law for several centuries and was inherited by many other common-law jurisdictions, including the United States.
After the rise of the women's rights movement in the mid-19th century, coverture came under increasing criticism as oppressive and as hindering women from exercising ordinary property rights or entering professions. Coverture was first substantially modified by late-19th-century Married Women's Property Acts passed in various common-law jurisdictions, and was weakened and eventually eliminated by later reforms. Certain aspects of coverture survived as late as the 1960s in some states of the United States.
Principle
Under traditional English common law, an adult unmarried woman was considered to have the legal status of feme sole, while a married woman had the status of feme covert. These terms are English spellings of medieval Anglo-Norman phrases.The principle of coverture was described in William Blackstone's Commentaries on the Laws of England in the late 18th century:
A feme sole had the right to own property and make contracts in her own name, while a feme covert was not recognized as having legal rights and obligations distinct from those of her husband in most respects. Instead, through marriage a woman's existence was incorporated into that of her husband, so that she had very few recognized individual rights of her own. As expressed in Hugo Black's dissent in United States v. Yazell, "This rule has worked out in reality to mean that though the husband and wife are one, the one is the husband." A married woman could not own property, sign legal documents or enter into a contract, obtain an education against her husband's wishes, or keep a salary for herself. If a wife was permitted to work, under the laws of coverture, she was required to relinquish her wages to her husband. On the other hand, a feme couvert could not be sued or sue in her own name. In certain cases, a wife did not have individual legal liability for her misdeeds since it was legally assumed that she was acting under the orders of her husband, and generally a husband and a wife were not allowed to testify either for or against each other.
A queen of England, whether she was a queen consort or a queen regnant, was generally exempted from the legal requirements of coverture, as understood by Blackstone.
History
The system of feme sole and feme covert developed in England in the High and Late Middle Ages as part of the common law system, which had its origins in the legal reforms of Henry II and other medieval English kings. Medieval legal treatises, such as that famously known as Bracton, described the nature of coverture and its impact on married women's legal actions. Bracton states that husband and wife were a single person, being one flesh and one blood, a principle known as 'unity of person'. Husbands also wielded power over their wives, being their rulers and custodians of their property.While it was once assumed that married women had little or no access to legal recourse, as a result of coverture, historians have more recently complicated our knowledge of coverture in the Middle Ages through various studies of married women's legal status across different courts and jurisdictions. Collectively, many of these studies have argued that 'there has been a tendency to overplay the extent to which coverture applied', as legal records reveal that married women could possess rights over property, take part in business transactions, and interact with the courts. In medieval post-conquest Wales, it has been suggested that coverture only applied in certain situations. Married women were responsible for their own actions in criminal presentments and defamation, but their husbands represented them in litigation for abduction and in interpersonal pleas.
The extent of coverture in medieval England has also been qualified by the existence of feme sole customs that existed in some medieval English towns. This granted them independent commercial and legal rights as if they were single. This practice is outlined in the custumal of Henry Darcy, Lord Mayor of London in the 1330s, allowing married women working independently of their husband to act as a single woman in all matters concerning her craft, such as renting a shop and suing and being sued for debt. The custom is known to have been adopted in a number of other towns, including Bristol, Lincoln, York, Sandwich, Rye, Carlisle, Chester and Exeter. Some North American British colonies also adopted this custom in the eighteenth century. However, it is unclear how many women took up this status, the extent to which it was legally enforced, or whether the legal and commercial independence it offered were advantageous.
According to Chernock, "coverture, ... author ... concluded, was the product of foreign Norman invasion in the eleventh century—not, as Blackstone would have it, a time-tested 'English' legal practice. This was a reading of British history, then, that put a decidedly feminist twist on the idea of the 'Norman yoke. Also according to Chernock, "the Saxons, ... boasted, had encouraged women to 'retain separate property'— ... a clear blow to coverture." Chernock claims that "as the historical accounts of the laws regarding women had indicated, coverture was a policy not just foreign in its origins but also suited to particular and now remote historical conditions." Coverture may not have existed in "the Anglo-Saxon constitution".
Coverture also held sway in English-speaking colonies because of the influence of the English common law there. The way in which coverture operated across the common law world has been the subject of recent studies examining the subordinating effects of marriage for women across medieval and early modern England and North America, in a variety of legal contexts. It has been argued that in practice, most of the rules of coverture "served not to guide every transaction but rather to provide clarity and direction in times of crisis or death." Despite this flexibility, coverture remained a powerful tool of marital inequality for many centuries.
Coverture in Early Modern England
Before 1870 in England, any money or property received by a married woman in her own name 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.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 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. 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 onwards however, dowries as property were commonly secured as a trust to the benefit of the offspring of the marriage in a 'separate estate'. In this form income from 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. A dowry could also be applied to support primogeniture when effected by entail and a 'strict settlement'.
Once a woman became married, she had no current claim in Common Law to any property she might then receive, as her husband had full control and could do whatever suited him: "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". For example, any copyrighted material would have the copyright pass to the husband on marriage. Even after her death, a woman's husband continued to have control over her former property. Nevertheless coverture was always recognised as a convenient legal fiction, and so was never applied absolutely; a wife's property could be seized by creditors for her husband's unpaid debts; but the wife could not then be confined in debtors' prison against repayment of those debts.
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. 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". 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, 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. 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.