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Married Women's Separate Property in England, 1660-1833
Includes examples from the literature of the time including Vangrugh's Relapse, Congreve's Way of the World, Sheridan's Schools for Scandal, Fielding's Tom Jones, and Austen's Pride and Prejudice.
304 pages, Hardcover
First published January 1, 1990
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Displaying 1 - 2 of 2 reviews
January 3, 2019
This is a legal history, heavily inflected by literary examples and feminist philosophy. The topic is the rights of English women, particularly married or once-married women, to property in the era between Cromwell and Victoria.
The general rule at common law was that married women were 'covert', and their property rights could be exercised by their husbands; widows would have full property rights and would have a claim to a third of all the freehold their husbands ever owned.
But there were exceptions, sometimes large enough to almost swallow the rule. Women could be separate beneficiaries of trusts, either created at the time of marriage by their families, or by their husbands. Husbands could promise 'pin money' to wives, and separate allowance to wives who had separated. Clever conveyancing could bar dower.
As Staves explores, the courts and lawyers of the time had a hard time with women's property, in large part because they had conflicting desires. On the one hand, the tendency of the common law was towards simplicity and uniformity and sharp dichotomies -- "freehold or no real rights", "femme covert or femme sole", "her property or his". On the other hand, the courts weren't prepared to follow that logic to socially unacceptable conclusions: it would be tempting for instance to say "the husband can put as much property as he pleases into trust for his wife" -- but this would make it far too easy for him to cheat his creditors. It would be tempting to say "all separate-maintenance agreements are enforceable at law and equity, including a covenant not to sue for divorce in the church courts" -- but this would effectively let couples divorce outside the church. Tempting to say "dower runs at equity as well as at common law" -- but this would make it very hard to sell property with clear title, since if a past owner many owners back dies leaving a widow, she would be in a position to claim against a highly-removed present tenant.
As the author shows, the courts made a muddle of things, and often a sexist muddle -- social consequences adverse to women were more tolerated than those adverse to men, and so the balance of legalistic vs social concerns were struck in ways that seem unfair to us.
The general rule at common law was that married women were 'covert', and their property rights could be exercised by their husbands; widows would have full property rights and would have a claim to a third of all the freehold their husbands ever owned.
But there were exceptions, sometimes large enough to almost swallow the rule. Women could be separate beneficiaries of trusts, either created at the time of marriage by their families, or by their husbands. Husbands could promise 'pin money' to wives, and separate allowance to wives who had separated. Clever conveyancing could bar dower.
As Staves explores, the courts and lawyers of the time had a hard time with women's property, in large part because they had conflicting desires. On the one hand, the tendency of the common law was towards simplicity and uniformity and sharp dichotomies -- "freehold or no real rights", "femme covert or femme sole", "her property or his". On the other hand, the courts weren't prepared to follow that logic to socially unacceptable conclusions: it would be tempting for instance to say "the husband can put as much property as he pleases into trust for his wife" -- but this would make it far too easy for him to cheat his creditors. It would be tempting to say "all separate-maintenance agreements are enforceable at law and equity, including a covenant not to sue for divorce in the church courts" -- but this would effectively let couples divorce outside the church. Tempting to say "dower runs at equity as well as at common law" -- but this would make it very hard to sell property with clear title, since if a past owner many owners back dies leaving a widow, she would be in a position to claim against a highly-removed present tenant.
As the author shows, the courts made a muddle of things, and often a sexist muddle -- social consequences adverse to women were more tolerated than those adverse to men, and so the balance of legalistic vs social concerns were struck in ways that seem unfair to us.
July 10, 2007
Uneven genius. Read it for the facts and insights, bear with the writing.
Displaying 1 - 2 of 2 reviews