A Brief History of Marriage

A Brief History of Marriage

Marriage Laws and Women's Financial Independence

 

Historically, a woman's marital status has significantly influenced her ability to control land, assets or income. Historian Karen Offen explores the constraints that women faced and discovers how some were able to escape them to achieve economic and political power.

In the early 18th century, the English critic Daniel Defoe denounced marriage as "legalized prostitution." English law dispossessed any woman who married, with the notable exception of England's queens. Women were not allowed to own property or land or to control their own assets. William Blackstone, a celebrated 18th century jurist, put it this way: "By marriage, the very being or legal existence of a woman is suspended, or at least incorporated or consolidated into that of the husband, under whose wing, protection, or cover she performs everything."

Even women with dowries or inheritances were subjected to the financial control of husbands, other male relatives, or guardians. Married European women could not buy or sell, except in the capacity of "deputy husbands." They could not engage in any financial transactions in their own right. Their dilemma is epitomized by the case of Millicent Garrett Fawcett, an English woman whose purse was stolen by a young thief in the 1870s. Already a leader of the movement for woman suffrage, she was surprised to hear in court that the charge against the thief was "stealing from the person of Millicent Fawcett a purse containing £1, 18s. 6d., the property of Henry Fawcett." In her memoirs, Millicent wrote, "I felt as if I had been charged with theft myself."

By the mid-nineteenth century, women in England had begun to fight back. A petition to Parliament in 1856, signed by 26,000 women, stated "that since modern civilization, in definitely extending the sphere of occupation for women, has in some measure broken down their pecuniary dependence upon men, it is time that legal protection be thrown over the produce of their labor, and that in entering the state of marriage, they no longer pass from freedom into the condition of a slave, all whose earnings belong to his master and not to himself."

Both English and French women frequently invoked the analogy of slavery to define their situation in marriage. Laws passed by Parliament in 1857, 1870, and 1882 dramatically changed the possibilities of property ownership and wage retention for married women in England. Even afterward, married women were not guaranteed control of their property and wages. One English suffragist proclaimed at the 1893 World Congress of Women, "The legal position of the wife in England is a scandal to civilization."

In France, the Napoleonic Code cast a draconian set of restrictions over a married woman's ability to engage in financial transactions or keep her own wages. This created difficulties for the Basque peoples, for example, where daughters often became the designated heiresses of family farms if they were considered more competent than the sons. Governments throughout Europe adopted the French's Napoleonic Code as their model for dispossessing women in marriage.

Both English and French law, however, made exceptions for businesswomen operating as "femme sole," even though they had married. Women who remained single did not suffer from such disabilities. Indeed, some women, like the feminist Maria Deraismes in France, chose to remain single precisely so they could retain their wealth and independence. In Olive Schreiner's 1883 novel The Story of an African Farm, the heroine, Lyndall, remarked to her married older sister, "I am not in so great a hurry to put my neck beneath any man's foot; and I do not so greatly admire the crying of babies. There are other women glad of such work."

In many European societies, widows could achieve full independence. But widows did not inevitably inherit from their husbands; it took a series of laws to ensure their inheritance, and in some instances, they could renounce their late husband's debts. History also records instances of women who became traders or heads of businesses and made significant money which they controlled themselves. Many of them were widows, such as the 17th century German-Jewish Glikl bas Judah Leib (Gluckel of Hameln), the 18th century Dutch-American entrepreneur Maria Van Renssaeler, or the 19th century French Catholic Veuve Cliquot, who took over her husband's wine business after his early death and grew it into the great French champagne company we know today. Others would include the American Madame C. J. Walker, who pioneered hair products for African-American women; the Egyptian industrialist Helama ‘Abd al-Malik, known as "the Queen of Cotton"; the German industrialist widow Sophie Henschel, sole proprietor of a company that manufactured locomotives; and the Finnish Hella Wuolijoki, who made huge amounts of money in international trade during World War I, and gave much of it away in the 1920s.

This same English common law governed women's relationship to marriage and money in the early American colonies. Only the passage of the Married Women's Property Acts by a series of American states in the mid-nineteenth century guaranteed that married women would receive either the fruits of their labor or inherited property. A series of other acts made it possible for mothers to obtain custody of their children in case of divorce; formerly the children "belonged" to the husband-fathers.

But in other areas of the Americas, a different system prevailed. French law predominated in Louisiana, and Spanish law ruled in the West and Southwestern (including Texas and California) that later became the United States. Under Spanish law, married women could actively control their own property, and all of a married couple's assets acquired following marriage became community property. Ultimately in the West, this system triumphed over the retrograde English common law, though not without a struggle.

Indeed, in the western USA in the early 20th century, single women could even file for land under the Homestead Acts. In a book on women homesteading the West, Marcia Meredith Hensley observes that "A [single] woman who owned her own property had clout in the community, and she was more likely to be considered an equal partner in a family ranch if her name was on the homestead patent granting ownership. Being a landowner might even have given her an advantage in finding a marriage partner, if she wanted one. Or if she didn't marry, she knew she could take care of herself."

Women's literacy, education, and enhanced understanding of legal restrictions that governed their access to money, jobs and land fueled their campaigns to change the laws of marriage. These factors jump-started the feminist campaigns of the 19th and 20th centuries in many societies, which would lead to women's empowerment and, ultimately, social and economic independence.

The development of a critical mass of activist women provided a foundation to provoke change in women's relationship to money and property, and even helped to change the parameters of marriage itself--for money and equitable marriage laws, in conjunction with literacy and education, are the touchstones for changing hierarchical relations between the sexes into full partnerships.


REFERENCES:

F. Engels, The Origin of the Family, Private Property, and the State, in the Light of the Researches of Lewis H. Morgan, tr. Alick West, from the 4th German ed., 1891 (New York, 1942). Originally published in Zurich, 1884.

Lee Holcombe, "Victorian Wives and Property," A Widening Sphere, ed. M. Vicinus (1977), p. 3.

Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (1982).

Marylynn Salmon, Women and the Law of Property in Early America (1986).
Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England, 1850-1895 (1989).

Karen Offen, European Feminisms, 1700-1950 (2000).

Marcia Meredith Hensley, Staking Her Claim (2008), p. 23.


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Comments (4)


Patricia Fessler
United States

The history of women's assets is very informative. Does anyone have information on women's property from Central/Eastern Europe during the 1880 - 1920 Great Immigration? Possibly some of the readers are descended from families who immigrated to the U.S. during this period. Thanks

Karen Offen’s article, “A Brief History of Marriage”, describes how women have been financially and socially affected by their martial status. In the early 1700’s, the “legal existence of a woman” was suspended; women were protected by their husbands and performed everything for them. Women were unable to control their own finances or assets and could not own property. By 1856, some spoke out about their feelings that married women should not, “pass from freedom into the condition of a slave”. Women believed they should direct their own income, and be legally protected to manage the wages earned from their labor. Without government recognition of their independent financial status, women felt as though their husbands were their masters. This sense of ownership continued even after Parliament passed laws about property ownership and wage retention.
Despite these difficulties, women found ways to achieve independence. Women who chose to pursue business could remain single to retain their wealth and autonomy. Some widowed women became heads of their deceased husband’s businesses. By managing their own business, women were able to earn and control significant amounts of money. In the American colonies, women could, by law, inherit property, control their wages, and obtain custody of their children after divorce. With education more available to women, they gained literacy, jobs, and a deeper understanding of the laws and intuitions that restricted them. Although women have come a long way from viewing marriage as a form of slavery, they are still fighting to gain complete social and economic independence. Many men still use finances to control their wives, and many women must ask permission of their husbands to leave the house. Women must continue to fight for equal rights and egalitarian relationships with their spouse.

Sara D.
India

Islam established women's rights to inheritance and property in the 7th center. Additionally, women are entitled to retain all income and assets that she may bring into the marriage. If she does contribute any assets or income to the household it is actually considered charity.

Lodatz
United States

A couple of points, regarding the framing of details:

1) "A series of other acts made it possible for mothers to obtain custody of their children in case of divorce; formerly the children "belonged" to the husband-fathers."

Actually, that's not quite true. It was perfectly possible for a mother to obtain custody of their children, providing they could demonstrate a superior ability to provide for them than their father. Since it was the 19th Century, this was almost never the case. What "belonged" to the father was not the child itself, but the de facto obligation to provide for it.

Men did not 'own their wives', or their children, in the way you're framing it. Men were obligated to provide for them, instead, as executive of the family's communal wealth. They were his dependents, in much the same way as you register your dependents today on your tax return.

2) "Under Spanish law, married women could actively control their own property, and all of a married couple's assets acquired following marriage became community property. Ultimately in the West, this system triumphed over the retrograde English common law, though not without a struggle."

Yes, but what you're leaving out is that this was a triumph for women, and women alone. Men had no such liberation under the law as wives did.

See, the dissolution of personal property into communal property worked BOTH ways. Whatever wealth and property a man took into his marriage because the property of the marriage every bit as much as a woman's did; he had de jure (and yes, in some cases de facto) control over the use of such property, but it did not belong to HIM. It belonged to both of them. Of course, that's still an inequity, and still needed to be addressed, but the way in which it was addressed was not an elevation of women's rights to match men's right; in fact it elevated a woman's rights above that of her husband.

See, after the acts in question, husbands no longer had any claim upon the property of their wives, true enough, which was the purpose of the legislation. BUT. A wife STILL had claim upon her husband's property, as was her right as the wife of the household he was responsible for.

So, in other words, she could conduct private business to her heart's content, for herself only, whereas he was obligated to conduct business that provided for both himself, his wife, and any children they had. In fact, if his wife or his children ran up any debts, it was the wealth of the family that was legally demanded (y'know, 'his money') to pay for them, as he was obligated to such provision.

This has never, ever, been actually undone. This is why, when a woman divorces a man, unless there is a pre-nuptial agreement stating otherwise, she gets half of his wealth, WHETHER OR NOT IT WAS GARNERED DURING THEIR MARRIAGE.

If he divorces her, does he get the same deal? Not at all. Her wealth, is, after all, HER wealth, and no-one else's.

Kinda puts the whole 'equality' thing in a different light, no? ;)



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