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Report No. 66

2.10. Position at common law.-

The position emerging from these statutes may be contrasted with the common law. The position at common law was well summarised by a writer in the Harvard Law Review1, in these words:-

"At common law a woman's capacity to hold or receive title to property was not destroyed by marriage, but marriage had important consequences. It gave a man a right to use and enjoy whatever property his wife owned at the time of marriage or acquired during coverture. A husband acquired a right to possess his wife's real estate and to enjoy the rents and profits thereof, but the fee remained in the wife. His interest was described as an estate for joint lives, since coverture normally could be terminated only by the death of one of the parties, but more accurately it was an estate for the duration of coverture.

If he pre-deceased his wife, the fee was in her; if she pre-deceased her husband, the fee went to her heirs, subject to a life estate in the husband by the curtesy if issue had been born alive. The husband had a right to use his wife's choses in action, and to this end to reduce them to possession, after which they became chattels personal. In view of the perishable nature of chattels, and the common law denial of estates therein, his right to use these involved such complete dominion as to amount to ownership, and consequently marriage was said to give him the legal title by operation of law.2"

"A married woman had no capacity to contract for herself, and her executory undertakings were void, but she had capacity to act as agent for others, including her husband. She had no capacity to convey her fee to real property, except in England by fine and recovery, and in the United States by joining with her husband in the conveyance. Consequently, husband and wife were under equal disability and lack of capacity to contract with or convey to the other.3"

"The husband was entitled to his wife's services and earnings whether performed in the home or elsewhere, for himself or another4; and the husband was under a duty to support5. A married woman had no capacity to sue or be sued alone in her own name, but whenever she had a substantive capacity, or was substantively the holder of a right, or subject to a duty, suit must be brought in the name of husband and wife, and judgment was enforced in favour of the husband or against both husband and wife.

In the case of torts committed against a married woman, her legal personality was substantively recognized, and in so far as the tortious act caused injury to a legally recognized interest of the woman herself, it was a chose in action of the woman's, and if the husband pre-deceased the wife before having reduced her chose, it remained to the wife;6 but, insofar as the injury was to the husband alone, either by depriving him of some interest, such as services and earnings, or by increasing the burden of his duties, such as support, it was a chose in action of the husband's. And the converse is likewise true.

A married woman substantively had capacity to commit most torts, but her liability was in a sense suspended during coverture, and the husband subjected. If she committed a tort during marriage, or committed a tort or contracted a debt before marriage, although the duty was substantively hers, suit must be brought against husband and wife, and judgment could be enforced against property of either; but if the husband pre-deceased the wife before judgment, the action remained against the wife alone.7 If the wife should predecease the husband before judgment, a question of survival of causes of action would arise."

1. William Mccurdy Torts between Persons in Domestic Relation, (1929-1930) 43 Harvard Law Review 1030, 1031, 1033.

2. As to property at common law, see Mccurdy Cases on Persons and Domestic Relations, (1927) 507-19, and cases therein cited.

3. As to post-nuptial contracts, conveyances, and transfers at common law, see Mccurdy Cases on Persons and Domestic Relations, pp. 520-536, and cases therein collected.

4. Prat v. Taylor, Cro. Eliz. 61 (1587); Brashford v. Buckingham, Cro. Jac. 77 (1606); Buckley v. Collier, 1 Salk, 114 (1701); see Warren Husband's Right to Wife's Services (1925) 38 Harvard Law Review 321, 622.

5. See Mccurdy Cases on Persons and Domestic Relations, pp. 709-35, and cases therein cited.

6. Mccurdy Cases on Persons and Domestic Relations, pp. 770-81, 794-818, and cases therein cited.

7. Mccurdy Cases on Persons and Domestic Relations, pp. 677-708, and cases therein cited.

Married Womens Property Act, 1874 Back

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