Sunday, 10 February 2008

Legally emancipating Women : 2

Marriage and property

Feminists campaigning in this arena centred on inequalities and problems relating to the institution of marriage and on efforts to wipe out the double standard of morality based on gender that licensed male freedom an female suppression. The two areas were linked by the legitimation of the double standard enshrined in matrimonial legislation. The high incidence of marriage and its centrality in women’s lives, determining their status whether they were married or not, made it an obvious and important feminist concern. Campaigners embraced the property of married women, their access to divorce, custody of children, violence within marriage and the curious controversy over marriage to a deceased wife’s sister.  It was marriage that remained the common majority experience in women’s lives. The very earliest of all feminist campaigns focused on highlighting the inequalities within marriage: the loss of political and legal status that a married woman exchanged for social status within marriage; the differing moral standards to which wives and husbands were expected to conform; and. their effect on the dissolution of failed marriage.

On marriage, the legal assumption of coverture determined a woman’s loss of all rights of economic independence and property. The eighteenth century jurist laid down the legal relationship: ‘By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the women is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything.’ At marriage, both possession and control of a woman’s property -- including any money she might earn from paid labour -- passed to her husband unless property had been set up in trust for her under the law of equity. The husband’s right to property extended further into the human field as well: the children of the marriage were his children and where a marriage was dissolved, custody was automatically ceded to the man. Married women could neither sue nor be sued, nor enter into controls and her debts and legal wrangles were her husband’s responsibility. He could even set aside her will on her death. Women were disallowed any responsibility or competence within marriage and were tied to a moral standard to which their partners were not expected to adhere. In the few divorce cases heard in parliament before the marriage reforms of the 1850s, few women came forward as petitioners. Where they did present cases involving adultery by their husbands, their bids for divorce were rejected, while adultery on the part of the wife would always be sufficient grounds for a husband’s petition.

In the 1854 Barbara Leigh Smith published a tract on women’s legal disabilities entitled A Brief Summary, in plain language, of the most important laws of England concerning Women, together with a few observations thereon. It was the start of a campaign that was to become one of the more prominent and indeed successful of all feminist agitation[1]. By 1856 a petition bearing 3,000 signatures and demanding a change in the law affecting married women’s property was presented to both Houses of Parliament with the organisation of public meetings on the topic. It is in this context that the Divorce and Matrimonial Causes Act was passed hurriedly in 1857. Before 1857 responsibility for divorce had been vested entirely in the hands of the church. Ecclesiastical law recognised very few grounds for divorce and the only other recourse was the obscure and costly one of a private petition to parliament. Consequently it remained a rare and restricted option with only about 200 such petitions ever being granted. The 1857 Act was passed through parliament very quickly to head off the more alarming prospect of a proposed married women’s property bill. Legislation affecting divorce arose largely from the government initiated Royal Commission on divorce set up in 1850 whilst the less successful attempts to change the law on married women’s property arise directly from feminist lobbying.

The 1857 Act was an unsatisfactory one for the feminists in three respects. First, it had been used as a political football that was to set back the cause of married women’s property by more than ten years. Secondly, the inadequacy of its provision for deserted wives. Finally, the act enshrined the double standards in the grounds in established for securing a divorce. Women’s access to divorce was limited to cases where the husband’s adultery was compounded by further sexual misdemeanours while for the man his wife’s adultery was sufficient cause. There were some 150 divorces per year in the 1860s following the 1857 Act, a surprisingly high proportion of them among the working and lower-middle class [perhaps approaching half]. For 1890 to 1900 this had risen to 582 annually.

The major injustices of the 1857 Act were the subject of little feminist attention in the years immediately following. It only surfaced again when organisations like the Women’s Emancipation Union made divorce reform a plank of their policies in the early 1890s. The Clitheroe case of 1891 was also instrumental in re-opening the wider question of women’s status within marriage. Mr and Mrs Jackson had lived apart throughout their brief marriage and when Jackson returned from New Zealand, his wife refused to live with him. He abducted her and held her captive while a legal suit was set in train. The judges initially upheld Jackson’s claim but this was overturned by the Court of Appeal which set Mrs Jackson free. A husband could not longer physically compel his wife to live with him.

In the previous thirty years, however, the marriage debate centred far more crucially on the property issue. The first married women’s property committee was set up in 1855 but it failed in its legislative attempts in 1856-7. It was an issue that raised interest across class barriers, more particularly in relation to a husband’s rights over his wife’s earnings. The history of the property campaign is essentially a history on the one hand of parliamentary manoeuvre, of bills and amendments through the late 1860s and 1870s, and on the other hard propaganda and lobbying on the part of women. When the first and inadequate instalment of the Married Women’s Property Act finally won royal assent in 1870[2], the campaigners were not mollified and maintained their attacks. Bills and amendments came before parliament in 1873, 1874, 1877, 1878, 1880 and 1881 before finally becoming law in August 1882. The 1882 Act was widely regarded as a victory equalising the rights and responsibilities of women irrespective of marital status[3]. Even after 1882 it is likely that relatively few women had sufficient income or property on which to live conformably alone or with children after divorce.

Of far more central concern in the 1870s was a growing awareness of and anxiety over violence within marriage. Legal opinion did little to prohibit male violence. It was Frances Power Cobbe’s denunciation of wife-abuse, an act she saw as resulting in large part from the degrading pressure of poverty that re-opened the marriage debate in the late 1870s. She argued that the new divorce courts remained an option beyond the reach of poor women, whom she felt to be more at risk. The passage of the Matrimonial Causes Act in 1878 established a class distinction: wealthier women could still obtain full divorces under the 1857 Act, while working women were offered the cheaper but more restricted alternative of a separation order granted through a magistrate’s court, which prohibited the option of re-marriage. Cobbe saw the 1878 act as a means of empowering women. Yet her suggestions were more far-reaching than those actually implemented in the legislation. She argued that the right of separation should be amplified by automatic maternal custody of children and by maintenance orders for a wife and children against the offending husband. From 1883 about 8,000 separation orders per year were being granted. The subsequent history of these changes shows that the option of separation was utilised largely by women while divorce remained primarily a vehicle used by men. The social stigma attaching even to an ‘innocent’ divorced woman in respectable circles [though not to a separated wife in the working class, figures suggest] may have remained a considerable deterrent to ending a marriage.

Another area of feminist protest was whether men’s rights extended over their children as much as their wives. A divorced woman also risked the loss of her children. From 1839 an ‘innocent’ mother might legally be granted care and custody of children under seven. This was extended to 16 in 1873 and from the Guardianship of Infants Act 1886 the welfare of the child rather than the ‘guilt’ or otherwise of the parents was supposed to determine custody arrangements. It was still difficult for a women to prove in court the unfitness of a comfortably off father to bring up his heirs and, if she succeeded, to support them on her own. The financial problem was most acute in case of illegitimate offspring and many feminists believed that the bastardy clauses in the Poor Law Amendment Act 1834 and effective until the 1870s were another means of sanctioning and protecting male vice. The provisions of the 1834 Act made mothers almost wholly responsible for their bastard children, a measure that sat in curious contradiction to the legal power fathers exercised over their legitimate offspring. The Bastardy Law Amendment Act 1872 was carelessly drafted such that mothers had no legal redress against the fathers of children born before the passing of the act. This again catalysed feminist action.

The growing challenge to the conventions of marriage among the middle classes appears to have coincided with a peak of enthusiasm for formal marriage and associated religious ritual among the working classes. Older irregular customs of co-habitation and separation were disappearing except in remote rural areas and illegitimacy rates were exceptionally low. The argument that working class women promoted formal marriage as a source of security does not take account of the enthusiasm of working class men for stable partnerships. Both men and women were dependent for a reasonable standard of living upon a stable relationship.

Some historians have argued that changes to the statutes governing marital relations should be understood in the broader context of legal reform. Mid-century judicial review was certainly an important element of the reforming spirit of these years. However, the issue of married women’s property, where the two systems of common law and equity were clearly at odds, had been the subject of vigorous lobbying for a number of years before the first instalment of reform was carried in 1870. It is difficult, therefore, to interpret it as merely a product of the general zeal for reform. Gradually, it seems, in complex and still incompletely explored ways, divorce court judges were moving towards a conception of marriage as a contract between husband and wife embodying reciprocal rights and obligations, rather than as a relationship of patriarchal dominance and dependence. Nevertheless divorce was still not an easy path for a woman to take and in the circumstances it is surprising that so many had the courage and determination to end their marriages.

Many women cut their feminist teeth within this area of protest and through addressing the problems of property within marriage came a clearer understanding of other aspects of female subjugation. The feminist critique was not on marriage and they did not seek to undermine the practice or prevalence of marriage but to realign the rights of partners within that institution. As the movement grew in numbers and in confidence, and as to analysis of the position of women grew more sophisticated, so it widened its net to other areas of civil disability.


[1] Important primary sources are Josephine Butler Personal Reminiscences of a Great Crusader, London, 1896, Life of Frances Power Cobbe: By herself, London, 2 vols., 1904. Useful collections of material can be found in Candida Ann Lacey (ed.) Barbara Leigh Smith and the Langham Place Group, Routledge, 1987 on whom see also Hester Burton Barbara Bodichon 1827-1891, John Murray, 1949 and Sheila Herstein Mid-Victorian Feminist: Barbara Leigh-Smith Bodichon, Yale, 1985. Jane Lewis (ed.) Before the Vote was won, Routledge, 1988 provides significant materials for and against extending the franchise to the mid-1890s.

[2] The 1870 Act allowed all wives to retain any property or earnings acquired after marriage rather than, as before, losing them to their husbands.

[3] The 1882 Act allowed women to retain any property possessed at the time of their marriage, thus extending to all women with property a right which the better-off had previously been able to acquire through establishing a trust in equity.

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