MARRIED WOMEN AND THEIR PROPERTY.
APROPOSAL to make so great a change in the law as that so ably advocated by Mr. Shaw Lefevre is sure to meet with much opposition on the part of those who are interested in maintaining the present system. As things stand, the Com- mon Law gives the husband absolute power over the person of the wife, and over almost all her property. The Times tells us that this is the only sound view of the domestic re- lation, and adds that, " unless all experience up to the present day is at fault, it is absolutely requisite to the peace of the family and to the happiness of all the members of it, that the authority of the husband and the subordination of the wife and children should be decidedly maintained." This could not be the case " if husband and wife were, not only before, but after marriage, in the position of equal contracting parties. Marriage would then become, in fact, a mere cohabitation of independent agents for special pur- poses." We do not wonder at such a prospect being terrible. Whenever the word " cohabitation " is used in the course of an argument we know that something dreadful is coming. If a Churchman wishes to stigmatize a marriage contracted before
the Registrar-General, he calls it a legalized cohabitation. There are some who carry this principle still further, and, acting on St. Paul's direction that the bishop and the deacon ought to be the husband of one wife, describe the second wives of clergymen as their concubines. Much may, no doubt, be effected by calling names and by using long words. Unfortun- ately the Times has already admitted that all the marriages of the wealthier classes are so strictly fenced by settlements as to constitute these dreaded kinds of cohabitation. As it is allowed that almost everybody who can afford the luxury of a solicitor refuses to be married according to the common law, and as, according to the Times itself, " all settlements are drawn up as exceptions to the general rule," why should not that general rule be abandoned in favour of those universal exceptions ?
It is no answer to Mr. Shaw Lefevre's motion to say that if any change is made there ought to be one of a more sweeping character, and that the whole question of the relations of husband and wife ought to be considered. We are fully of that opinion, but that is not the point at issue. What is wanted now is some method of placing all people on an equality, and of supplying by means of law what is now done in its teeth. Is it right or sensible to maintain a general rule which is as generally broken, and which merely exists for the purpose of driving people into cumbrous and expensive eva- sions ? To the upper and middle classes a settlement is as much a part of the marriage as a licence. No one would dream of taking a wife, no one would dream of giving a daughter, with- out setting two firms of attorneys to squabble by letters at five shillings each, and long attendances at thirteen and four- pence. A moderate bill for such services amounts to 1501., and this is one of the first items to be defrayed by the husband. How much of this squabbling is necessary, and how much is created for the purpose of swelling the bill, depends on the circumstances of each case. But if marriage in the eye of the law did not transfer the wife's whole property (with the excep- tion of her freeholds) to the husband, there would be no chance of any such differences. If the law made a just and equitable provision for the wife, as it makes a fairly just and equitable distribution of the personal property of an intestate, there would be none of those ante-nuptial struggles which often lead to post-nuptial hostility. In the present state of things, the man feels naturally aggrieved at being asked to surrender those rights which the law gives him. There is something tantalizing in being informed that marriage makes him absolute owner of all his wife's property, and, therefore, it is essential that her property should be protected against him. Wherefore, then, serveth the law ? he is tempted to ask, and the answer seems to be, that it is for the benefit of the lawyers. This can hardly reconcile him to the existence of such a system. But then he is in reality the one who suffers least from it. Those who are worst off are the people for whom no precautions are taken. The law cannot be expected to redress its own injustice, and, after lay- ing down a general rule, which it is the interest of every one to break, and which is actually broken by nine out of ten, to make allowance for the oversight of the tenth. Equity may do something, especially as the County Courts unite legal and equitable jurisdiction. But it is not enough to allow the clearest and most substantial rights to exist on sufferance, and to enable certain Courts to relieve against hardships which arise out of a practically extinct and barbarous theory. A rule cannot be made for the minority of cases, and when once the exceptions outnumber the examples, the tables must be turned.
We confess that there are many difficulties of detail in the change proposed by Mr. Shaw Lefevre. The principle on which marriage settlements have been based is, that if a wife has property under her absolute control, she will be sure to surrender it to her husband. It is remarkable that the Times, while arguing against any change in the law which makes marriage settlements necessary, argues also against any change in regard to the settlements themselves. If you alter the law, it says, the husband will no longer have the control of the wife's property, which is absolutely requisite to the peace of the family. But if you do away with the custom of making settlements, the husband will get the control of the wife's property, to her ruin and to her children's pre- judice. Thus the powers given by the law are so far good that they ought on no account to be exercised. Make the husband supreme on condition of his abdicating his supre- macy. But, as we understand Mr. Shaw Lefevre, the object of the new Bill is to protect the wife's property by law, and to obviate the necessity of extra-legal precautions. It is not likely that, in order to attain this end, the wife will be left to her own resources. We may presume that Mr. Shaw Lefevre, who has read something on the law of husband and wife, and referred to a few cases in the course of his studies, has not overlooked so essential a provision as that of guarding the wife against undue influence. His Bill is not yet printed, and the sketch of it given in his speech is somewhat vague. But we do not think the Pall Mall Gazette is justified in inferring that a woman who marries without a settlement "is to be in the same position as a fem,e sole." Mr. Shaw Lefevre says that she is to have her own fortune, just as if it had been settled to her separate use under a marriage settlement. This surely implies that she is to be under the same protec- tion. The law is to do for her what is now done by special arrangement. Yet even if this was not the case, and if the married woman was put in the position of a single woman, with the power of being independent of her husband on the one hand and of surrendering her property to him on the other, any evils that would result might be obviated by the appointment of trustees. If marriage settlements are desir- able in themselves, such a change in the law would hardly reduce their number. It is true that under present circum- stances settlements are a protection for the wife against the husband. But there is no reason why they should not pro- tect the wife against herself, just as the proprietor of an entailed estate is guarded against his own extravagance. Either the law would supply their place, or would not dis- place them.
However, what is now at stake is the principle of legal protection for married women. We must not let any questions of detail divert us from the main issue. If it be right to remodel the whole relation between husband and wife, a Bill to that effect must be introduced before we are asked to abandon the one now in progress. At some future time it may be well to ascertain how far the husband ought to be liable for his wife's debts, and what is the proper doctrine of necessaries. The present Bill does not go to these legal subtleties, nor does it, so far as we are aware, touch on a great many other points which give rise to confusion and trouble in the daily transaction of business. A short time ago we had the case of a woman who traded on her own account, described herself as single, entered into and performed contracts, and finally became bankrupt. On her endeavouring to secrete or make away with some of the goods which she had acquired in the course of trading, and on her being indicted for this offence, she pleaded that she was a married woman, and she escaped all punishment. Thus because a woman happens to have a husband, who has been living apart from her, and whose very existence is not known to others, she is relieved from the duties of property. We have chosen this case as more likely to impress practical men than any of the numberless sentimental grievances which are generally brought up against the present system. It shows, we think, conclusively that husband and wife ought to be treated as two persons, although their partnership might be recognized. Any one who is accustomed to the forms of law is aware of the absurd complications which are needed before a married woman can have any legal redress against a stranger. In some cases husband and wife must sue and be sued jointly. In others the husband and wife together must sue for part, and the husband alone for the rest. It may be said that there is no great hardship in all this ; and we are far from setting up these remnants of an obsolete jargon as instances of the injustice of the English law of husband and wife. Far better instances are given in Mr. Shaw Lefevre's speech, and their cogency is not denied. All that can be urged against them is that they represent exceptional cases. It is not every husband that lives on his wife's earnings. It is not every husband that is reckless, improvident, or vicious. Some men would allow their wives to draw their money out of the Savings' Bank, or even to keep it there. Others are so scrupulous that they give themselves great trouble to procure their wives' signatures to bills which they might cash under their own endorsement.
For such people the change in the law will be needless, and all others may be disarmed by the payment of 1501. to an attorney. If nothing more than this, and the pompous platitudes about authority and subordination, savouring strongly of the henpecked husband, can be advanced against the protection of married women, Mr. Shaw Lefevre's Bill ought to be sure of passing.
Previous page
