Women's Legal position in Regency times


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    It wasn't until the end of the nineteenth century that married women had any rights over their property - either that which they owned at marriage or any which they acquired after marriage either by inheritance or by their own earnings. All property within marriage legally belonged to the husband. But this isn't surprising if you consider the attitude to marriage. According to Blackstone, writing in about 1765, the husband and wife were one person in law: the legal existence of the woman was suspended and incorporated into the personality of her husband. A husband could leave property to his wife in his will (because that would not take effect until after the marriage was ended by his death), but could not make a legal gift to her and was responsible for all her debts, whether contracted during the marriage or before.

    Legally, therefore, prior to the Married Women's Property Act 1884 married women were classed as 'femmes covert' and a woman's personal property was transferred automatically to her husband on marriage; her real property came under her husband's control but remained hers for inheritance purposes.

    Married women during their 'coverture' (that is, during the marriage) had no legal testamentary rights at all in relation to real estate. Any personal property of a woman which she had before the marriage, or acquired after the marriage, became her husband's absolutely, and as such, he had the right to leave it by will. Only with her husband's permission could a wife make a will leaving personal property - even if it had been hers before her marriage. Moreover, his consent only applied to a particular will and this consent had to be strictly proved. His consent could be revoked even after her death. The only exception to this was her right to make a will leaving her 'paraphernalia' - clothing and personal ornaments.

    A married woman might make a will if she had an equitable interest such as a trust in her favour. Harriot Mellons provides us with one of the best examples of this. Harriot was an actress who married the incredibly wealthy banker, Thomas Coutts. On his death he left her nearly three quarters of a million pounds. She put it in trust which meant that on her second marriage to the Duke of St Albans, she was able to retain control of her property.

    Such separate estate was usually set up by a 'strict' settlement, involving a life estate to the husband with remainders in tail to each of his male children in order of seniority with provision for the wife and younger children of the marriage. The wife's provision comprised 'pin money' (an annual income for personal expenses during her husband's life) and 'jointure' (provision for her after her husband died).

    In the context of marriage, a "settlement" is a legal document that usually ensures that some or all of the property that the wife brings to the marriage ultimately belongs to her, and will revert to her or her children (though she does not necessarily have personal control over it during her marriage); otherwise it would basically belong entirely to her husband. And a settlement can also specify a guaranteed minimum that the children of the marriage are to inherit. For instance, using Jane Austen as a guide here in Northanger Abbey, Henry Tilney can't be entirely disinherited by his father, General Tilney, because some of his inheritance is guaranteed by the marriage settlement of his late mother.

    Pride and Prejudice overs us an interesting insight into just how these work. We read that "Five thousand pounds was settled by marriage articles on Mrs. Bennet and the children.". A settlement was generally part of an overall pre-marital financial agreement between the wife or wife's family and the husband or husband's family. Therefore we read that the negotiations made to Persuade Wickham to marry Lydia guarantee "by settlement, her [Lydia] equal share of the five thousand pounds secured among his children after the decease of [ Mr. Bennet and his wife,] and, moreover, to enter into an engagement of allowing her, during his life, one hundred pounds per" year. In addition, Darcy undertook to pay his debts and purchase an officer's commission (as an ensign or sub-lieutenant) in the regular army.

    Before the 1884 Married Women's Property Act, most women were not allowed to own houses or gardens. This was the fate of Dorothy Nevill (1826-1913), who was unfortunately typical of the period. Having been as she said, "compromised in a Hampshire summerhouse", she was married off to a wealthy cousin, in whose 23-acre Hampshire garden she was able to pursue her horticultural interests. She built 13 greenhouses, corresponded with leading scientists, including Darwin, and amassed a vast and important collection of plants, rivalled only by Kew. When her husband died, however, he left his remaining money in trust to his chidren, and Nevill was obliged to sell her home, her garden and her collection.



    Calendar of Milestones

    1832
    First Reform Bill extended the vote to men who owned or rented property worth an annual rate of 10 pounds or more (about 18% of the adult male population). It included half of the middle class but excluded agricultural labourers and most industrial workers, and introduced the word 'male' into suffrage legislation for the first time.

    1839
    Custody of Infants Act inspired by the writings of Caroline Norton, this act allowed women who were divorced or separated but had not been proved adulterous - in short to be of 'unblemished character' - to ask for custody of children under seven. Previously, the father was immediately awarded custody of all children, regardless of the reasons for divorce.

    1857
    Matrimonial Causes Act - this established secular divorce in England. Prior to this secular divorce required an act of Parliament and cost hundreds of pounds, and only four women had ever achieved a divorce this way. The 1857 law provided that;
    (1) a court could order maintenance payment to a divorced or estranged wife;
    (2) a divorced wife could inherit or bequeath property, enter contracts, sue or be sued, and protect her earnings from a deserter;
    (3) a man could secure a divorce on the grounds of his wife's adultery. For women, a husband's adultery alone was insufficient grounds--she had to prove another charge such as desertion, extreme cruelty, or incest to secure a divorce.

    1867
    Second Reform Bill doubled the electorate by extending the vote to almost all working men except agricultural day-labourers. The feminists' amendment, for which they had presented the petition to John Stuart Mill, which would have substituted the word 'person' for 'man' in the description of eligible voters, was overwhelmingly defeated.

    1870
    Married Women's Property Act allowed women to keep up to 200 pounds of their earnings and to inherit personal property and small amounts of money; everything else (whether acquired before or after marriage) belonged to their husbands.

    1873
    Custody of Infant's Acts: Women could be awarded custody of children up to age 16, and adulteresses could petition for custody. 1878
    Matrimonial Causes Act: Women could be secure a separation on the grounds of cruelty and to claim maintenance and custody of children. Magistrates were authorised to provide protection orders to wives whose husbands had been convicted of aggravated assault.

    After the 1880 General Election William Gladstone became Prime Minister of a government that promised legislation that would reduce the legal inequalities between men and women. One example of this was the passing of the 1884 Married Women's Property Act.

    1882
    Married Women's Act. allowed wives to claim maintenance on the grounds of desertion.

    1884
    Married Women's Property Act. Married women could keep all personal and real property acquired before and during marriage. Under the terms of the act married women had the same rights over their property as unmarried women. This act therefore allowed a married woman to retain ownership of property which she might have received as a gift from a parent. Before the 1884 Married Women's Property Act was passed this property would have automatically have become the property of the husband.

    1884
    Third Reform Bill extended suffrage to rural male householders, to almost all men over 21 (thus a male labourer could vote, but not the wealthy woman who employed him).

    1884
    Matrimonial Causes Act: a wife deserted by an adulterer could petition for divorce immediately, rather than waiting two years, as previously required.

    1886
    Guardianship of Infants Act: stipulated that the mother automatically got custody of children if the father died.


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