Saturday, 6 February 2016

Women and the law


There is a good summary here of some of the legal issues raised in this blog.

The legal status of English women was defined by the centuries’-old common law, a system built up by custom, precedent and legal judgement as well as statute. Under the common law English women took their husbands’ names – a practice that was not found in Scotland or the rest of Europe. But the common law also gave some women rights not available on the Continent.

Contrary to popular belief, English common law never stated that wives were the property of their husbands - even if many men might have acted as if this were the case! Wife-sales happened from time to time but they were never legal and were often simply an unofficial, mutually-agreed divorce. See here for more details.

However, before 1882 the law made a clear distinction between married and unmarried women. An unmarried woman or a widow was a 'feme sole' with the right to own property and make contracts in her own name. She had the same legal freedoms as a man. However a married woman was defined as a 'feme covert'. She took her husband's name in marriage and by the end of the eighteenth century the term 'Mrs' was coming to describe a married woman only, and the usage 'Mrs John Smith' to describe a married woman was becoming customary. See here for more information. A married woman  could not own separate property or enter into contracts and if she had any debts her husband was answerable for them. Her status was defined by the jurist William Blackstone:
'By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.'

However, married women often had more independence than the common law allowed. Among propertied families, it was usual for the families of the prospective bride and groom to draw up a marriage settlement, according to the rules laid down by the Court of Chancery. This involved putting some of the wife’s jointure into a trust so that their husbands had no power over it. It also gave the married woman an income, often known as pin money.  In his will William Wilberforce of 1833 left a sum of money to his daughter-in-law 'for her own separate and peculiar use and benefit',  and tied it up in a trust so that his unsatisfactory son could not touch it.  

Marriage and the family

Caroline Norton, writer and
granddaughter of Richard Brinsley
Sheridan; she secured the right of mothers
to sue for custody of their
young children.

Child custody: The case of Caroline Norton highlighted the disabilities women suffered in the family. When her marriage broke up she lost the custody of her young children and in response to her plight parliament passed the Custody of Infants Act in 1839. This permitted a mother to petition the Court of Chancery for custody of her children up the age of seven and for access in respect of the older children. In 1873 the age was raised to sixteen. 

Divorce: Up to 1857 divorce was only available to husbands, who were able to divorce their wives for adultery (the only ground for divorce until the twentieth century). This was done in three stages: 

  1. The aggrieved husband obtained a divorce (i.e. separation  ‘from bed and board’ in a church court. This enabled the  couple to live apart but they were not free to remarry.
  2. The husband then sued the wife’s lover for ‘criminal conversation' in a common law court.
  3. If the husband wanted a divorce which permitted him to marry he secured a private divorce bill in the House of Lords. If this passed the Lords, the bill moved to the Commons and when the bill received the royal assent, the couple were divorced, both being free to remarry.

In 1854 Effie Ruskin secured an annulment from her husband, John. But this was on the grounds of non-consummation; the marriage had never been valid in the first place.

In 1857 Parliament passed the Matrimonial Causes Act, which for the first time allowed a wife to divorce her husband. The Act created a new Court of Divorce and Matrimonial Causes to hear and decide civil actions for divorce. A husband could petition for divorce in the sole ground of adultery. A wife could not divorce for adultery alone but also had to cite in addition cruelty, desertion, incest, rape, sodomy or bestiality. 

In the first year of the Act there were three hundred divorce petitions, 40 per cent of them coming from wives. But the Act was a dead letter for the poor. A man like Stephen Blackpool in Dickens's Hard Times would not have been able to afford to divorce his wife. 

Leaving the matrimonial home: Traditionally English common law supported a husband who attempted to recover a runaway wife. However in the case of Regina v. Leggat in 1852 a husband was refused a writ of habeas corpus to force his wife back into the family home.  

The key ruling came in the case of  Regina v. Jackson in 1891. A wife left her husband  for another man. The husband kidnapped her as she was leaving church and took her home. When the case came to the Court of Appeal, the Lord Chancellor overturned an earlier judgement in the Divisional Court and granted habeas corpus, saying the husband had no right to detain the wife against her will. He assed that if a husband ever had the legal right to beat his wife, that entitlement was now obsolete. Following this ruling it was established that a husband cannot legally detain his wife in his house.

Victorian property legislation

The Act of 1870 allowed married women to own their own wages and earnings, certain investments, and property inherited as next of kin of an intestate. They were allowed to inherit personal property of a value of less than £200 under a deed of will but no more. But from the late 1870s a string of judicial decisions showed that the act was not working as intended. In particular a magistrate in Manchester ruled that a wife could not sue her husband for stealing her property even when they had received a judicial separation.  

The Married Women’s Property Act of 1882 altered the common law doctrine of coverture to include the wife’s right to own, buy and sell her separate property.  The courts were forced to recognize a husband and a wife as two separate legal entities, in the same manner as if the wife was a feme sole. Married women could own stock in their own name, they could sue and be sued. They were responsible for their own debts, and any outside trade they owned was subject to bankruptcy laws.

The legislation on divorce reinforced the double standard of morality, by which women were held to a higher standard of sexual behaviour than men. This double standard was seen most clearly in the series of Contagious Diseases Acts, passed in the 1860s. Josephine Butler saw these acts, which subjected women suspected of being prostitutes (but not their supposed male clients) to painful and humiliating medical examinations as an affront to the dignity of women and launched an eventually successful campaign for their repeal. 

Josephine Butler 1828-1906

Her campaign converted her to the cause of female suffrage. Only a male-only parliament could have passed legislation that was so flagrantly discriminatory against women. In her view, the law still had a long way to go before women were treated fairly.