USQ Law Society Law Review
Tory Webb
Winter 2021
to be considered under and absorbed into the protection and legal rights of her husband6. Therefore, under the doctrine of coverture a married woman had no legal existence, leading to a wife to be considered civilly dead in the eyes of common law. The property rights held by a wife within a marriage ultimately belonged to the husband. This included the rights relating to goods/chattels or real property in the form of land and any income or profits derived from the property or earned as a wage from a job held by the wife7. In turn, if the husband were to acquire any debt during the course of the marriage, he was able to utilise the property of the wife to cover any debts. Within marriage under the doctrine of coverture, a husband was unable to grant any special permissions or allowances as this would allude to the separate existence of a wife from the husband. However, a husband could bequeath property, be it tangible or real property, in a will as this process did not begin until coverture extinguished8. As such, coverture rendered a woman unable to sue or be sued on her own behalf, alongside all relinquishments that a wife made in entering marriage, she in turn acquired the right to be supported by the husband in any civil or criminal wrongs that were held against her9.
B
Goods, Chattels and Real Property
The doctrine of coverture and women’s rights to property, be it in the form of a good, chattel or real property, was functionally nought due to all rights being transferred to the husband regardless of ownership prior to entering into the marriage10. Under the legal assumptions within the English common law, a woman’s marital status dictated her legal identity, wherein the marriage rendered all proprietorial rights to that of the husband, which was inclusive of all debts incurred prior to the marriage11. While a wife was limited within the capability of laying right to and claiming of property within the realm of civil law, there was the ability to lay legal claim to property rights within both equity and ecclesiastical courts12. Common law granted to single women and widows the ability to act as feme sole, which allocated the same legal rights and status as that of a man. In ownership of property within the marriage, real property brought into the marriage owned by the wife beforehand or under prior ownership of the husband had the ability to be utilized by the wife (up to one third) in the form of a fee simple holding13. Here the wife was entitled to the earnings and income derived from the property. Furthermore, while the real property was owned by her husband, the husband was unable to make sales of nor bequeath the land to another without the express consent of the wife. This portion of land was allocated through the 6
Ibid. Ibid. 8 Ibid. 9 Margaret Valetine Turano, 'Jane Austen, Charlotte Brontë, and the Marital Property Law' (1998) 21 Harvard Women’s Law Journal 179-226. 10 Blackstone (n 3). 11 Tim Stretton and Krista J Kesselring, Married Women and the Law: Coverture in England and the Common Law World (McGill-Queen’s University Press, 2013) ('Stretton and Kesselring'). 12 Ibid. 13 Ibid. 7
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