USQ Law Society Law Review
Tory Webb
Summer 2020
HOW DID THE MARRIED STATE LEAVE A WOMAN VULNERABLE UNDER ENGLISH LAW?* Tory Webb Introduction The following will explore the pre-nineteenth century English common law doctrine of coverture, with a focus on the vulnerability of women in relation to property rights and family relations. The rights will be broken down into those found under the doctrine of coverture focusing on that of real and moveable property brought into the married state by that of a feme sole before becoming a feme covert wherein the wife was considered civilly dead and apart of the husband’s identity.
Marriage and Women’s Property Rights Pre-Nineteenth Century England Coverture The doctrine of coverture can trace its roots back to Ancient Rome where under Roman law, a woman was considered to be under her husband’s wing upon entering into a marriage 1. As the common law began to develop within the middle ages between 1000 – 1500AD the English rulers began to incorporate and intermingle the traditions that were previously held by both the Roman and Norman civilisations which include the private, civil law from the Roman Empires and that of the canon law from that of the Norman Catholics 2. In turn, the foundation of a written English common law was first described in Commentaries on the Laws of England by English jurist William Blackstone3. Blackstone’s writings outlined a woman’s property rights upon entering into the civil contract of marriage, whereas the holiness of the state of a marriage left to the jurisdiction of the ecclesiastical courts 4. Taking into account the notion of the civil law, the doctrine of coverture was treated as any other contract, where the parties were required to show the legal proceedings as defined by three distinct actions, that of willingness to enter into the contract, the ability to enter into the contract, and that the contract actually took place5. *
Submitted for assessment in HIS1115
1
Professor Olivia Robinson, 'The Status of Women in Roman Private Law' (1987) Juridicial Review 143-162.
Claudia Zaher, 'When a Woman’s Marital Status Determined Her Legal Status: A Research Guide on the Common Law Doctrine of Coverture' (2002)(94) Law Library Journal 459-486. 2
3
William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765).
4
Ibid.
5
Ibid.
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