Husband and Wife

HUSBAND AND WIFE (see ROMAN LAW). For the methods in which the relation of husband and wife may be consti tuted and dissolved see MARRIAGE and DIVORCE. The present article deals only with the effect of marriage on the legal position of the spouses. The person chiefly affected by the contract is the wife, who under most early systems of law became subject in con sequence of the marriage to some kind of disability. The most favourable system scarcely left her as free as an unmarried woman and the most unfavourable subjected her absolutely to the authority of her husband. In modern times the effect of marriage on property is perhaps the most important of the consequences arising from the relationship, and on this point the laws of differ ent States show wide diversity of principles.

English Law.

The contract of marriage, which is by law re garded as a civil contract only, is in its essence a consent on the part of a man and woman to cohabit with each other and with each other only. This contract differs from all other civil contracts in that it is indissoluble at the will of the parties. The English common law relating to marriage is indigenous to the country, the rules relating alike to the ceremony itself and to the legal re sults of the ceremony being entirely insular in their origin and deducible from no foreign source. There is, however, considerable analogy between the later development of the civil law of Rome and the modern law of England—in that both, starting from an extreme theory of the possessory right of the husband over the per son and property of the wife, have subsequently tended towards practical equality between the sexes. The original concept in English law was an absolute merger of the personality of husband and wife by virtue of the marriage ceremony—unica persona. quia caro una et sanguis anus. Bacon states in his Abridgement "from the time of the intermarriage, the law looks upon the husband and wife but as one person ; and therefore allows of but one will between them, which is placed in the husband." Hence a man could not grant or give anything to his wife, because she was him self, and if there were any compacts between them before mar riage they were dissolved by the union of persons. A husband, moreover, during his lifetime, had an absolute power of disposing of the personal property and chattels real (leasehold interests) of the wife, no act of hers being of any force to affect or transfer that which by the intermarriage she had assigned to him. The husband could not, however, dispose of the wife's chattels real by will and if she survived him her rights in her leasehold property revived. In the wife's freeholds the husband's ownership was not absolute, he having no power to dispose of them without her con sent, although as master and governor of the family he was entitled to receive the profits during the life of his wife.

Courts of equity, however, in process of time considerably modi fied the stringency of the common law by the introduction of the doctrine of separate estate, i.e., property settled to the wife for her separate use. In such case a married woman was entitled to deal with her property as if she were a feme sole. Connected with the doctrine of separate use was the equitable contrivance of restraint on anticipation, with which later legislation has not inter fered, whereby property might be so settled to the separate use of a married woman that she could not, during coverture, alienate it or anticipate the income. In yet another way the court of chan cery interfered to protect the interests of married women. When a husband applied to the court to get possession of his wife's choses in action (i.e., a legal right not in possession), he was required to make provision for her and her children out of the fund sought to be recovered. This provision was called the wife's equity to a settlement. Two other interests of minor importance also existed. The wife's pin-money, which was a provision for the purchase by her of clothes and ornaments suitable to her husband's position, and the paraphernalia, i.e., jewels and other ornaments purchased by a husband for the adornment of his wife, but not actually given to her so as to pass the property. These might be reclaimed by the husband in his lifetime, but he could not dispose of them by testamentary disposition unless equivalent benefits were conferred on the wife by his will—in which case she had to elect between the will and the paraphernalia. If her husband died solvent she might also claim the paraphernalia on his decease even though be queathed by him to a third party.

The corresponding interests of the wife in the property of the husband were much less satisfactory. Besides a general right to maintenance at her husband's expense she had at common law a right to dower in her husband's lands and, if he died intestate, to a third of his personal estate. Both of these rights were abolished by the Administration of Estates Act, 1925, which substitutes therefor the provisions following. If an intestate leaves surviving a husband or wife (with or without issue) the survivor takes the personal chattels of the deceased absolutely with a sum of £I,000 from the residuary estate, and in addition (should the intestate leave no issue) a life interest in the residuary estate. If the intes tate leaves issue, then a life estate of one-half of the residuary estate goes to the surviving spouse, and the other half on statutory trusts for the issue of the intestate. The act further provides for the ultimate distribution of the residuary estate. Under the older law the regulation of the respective rights of husband, wife and children by marriage settlements tended largely to obviate the hardships and injustices imposed upon women by the common law.

A

necessary sequence to the theory of the unity of person in the marriage relation was that neither husband nor ,wife could give evidence against the other in any legal proceeding whether civil or criminal. Survivals of this old law still exist in the fact that the combination of husband and wife, without a third party, for an un lawful purpose does not constitute an indictable misdemeanour so as to support a charge of conspiracy; and (apart from treason and murder) it is still a good defence for a wife to prove that the crime with which she is charged was committed in the presence of and under the coercion of her husband (15 and 16 G.5, c. 86 s. 47). A third survival of the old law is to be found in the fact that a hus band continues liable for the pure torts of his wife, i.e., for any tort not directly connected with a contract (Edwards v. Porter, 1925, A.C. I).

The fundamental changes introduced by the Married Women's Property Act, 1882, 1893, 1907, have enormously improved the position of a woman unprotected by settlements practically plac ing her in the position of a feme sole. The chief provisions of the Act of 1882 are shortly, that a married woman is capable of ac quiring, holding and disposing of by will or otherwise, any real and personal property, in the same manner as if she were a single woman, without the intervention of any trustee. The property of a woman married after the commencement of the act, whether be longing to her at the time of marriage or acquired after marriage, is held by her as a feme sole. The same rule applies in the case of property acquired after the beginning of the act by a woman mar ried before the act. After marriage a woman remains liable for antenuptial debts and liabilities, and as between her and her hus band, in the absence of contract to the contrary, her separate prop erty is deemed primarily liable, the husband being liable only to the extent of property acquired from or through his wife. The act also contains provisions as to stock, investment, insurance, crim inal proceedings and other matters. Its effect was to render obso lete the law as to what created a separate use on a reduction into possession of choses in action, as to equity to a settlement, as to fraud on the husband's marital rights, and as to the inability of one of two married persons to give a gift to the other.

The Married Women's Property Act of 1893 provides specifi cally that every contract thereinafter entered into by a married woman, otherwise than as an agent, should be deemed to be a contract entered into by her with respect to and be binding upon her separate property, whether she was or was not in fact pos sessed of or entitled to any separate property at the time when she entered into such contract, that it should bind all separate property which she might at that time or thereafter be possessed of or entitled to, and that it should be enforceable by process of law against all property which she might thereafter, while discovert, be possessed of or entitled to. The Act of 19o7 provides that a settlement or agreement for a settlement whether before or after marriage, respecting the property of the woman, shall not be valid unless executed by her if she was of full age or confirmed by her after she attained full age. The Act of 1908 provides that married women possessing separate property shall be liable for the main tenance of their parents. The Guardianship of Infants Act, 1925, gives the mother of an infant equal right with the father to apply to a court for guardianship of a child. The Act of 1926 provides for the legitimation of children (q.v.) by the subsequent marriage of their parents. The Law of Property Act, 1925, enables a married woman, without her husband, to dispose of or join in disposing of real or personal property held by her solely or jointly as trustee or personal representative in like manner as if she were a feme sole. It further enables her to disclaim any estate or interest in land without the concurrence of her husband and to acquire as well from her husband as from any other person any interest in real or personal property, and to hold the same either solely or jointly with third parties as a trustee or personal representative as if she were a feme sole.

Law of Scotland.

The law of Scotland differs less from English law than the use of a very different terminology would lead us to suppose. The phrase communio bonorum has been em ployed to express the interest which the spouses have in the mov able property of both, but its use has been severely censured as essentially inaccurate and misleading. It has been contended that there was no real community of goods, and no partnership of societas between the spouses. The wife's movable property, with certain exceptions, and subject to special agreements, became as absolutely the property of the husband as it did in English law. The notion of a communio was, however, favoured by the peculiar rights of the wife and children on the dissolution of the marriage. Previous to the Intestate Movable Succession (Scotland) Act, 1855, the law stood as follows. The fund formed by the movable property of both spouses may be dealt with by the husband as he pleases during life; it is increased by his acquisitions and dimin ished by his debts. The respective shares contributed by husband and wife return on the dissolution of the marriage to them or their representatives within a year and a day, and without a living child. Otherwise the division is into two or three shares, according as children are existing or not at the dissolution of the marriage. On the death of the husband, his children take one-third (called legitim), the widow takes one-third (jus relictae), and the remain ing one-third (the dead part) goes according to his will or to his next of kin. If there be no children, the jus relictae and the dead's part are each one-half. If the wife die before the husband, her representatives, whether children or not, are creditors for the value of her share. The statute above mentioned, however, enacts that "where a wife shall predecease her husband, the next of kin, executors or other representatives of such wife, whether testate or intestate, shall have no right to any share of the goods in com munion; nor shall any legacy or bequest or testamentary disposi tion thereof by such wife, affect or attach to the said goods or any portion thereof." It also abolishes the rule by which the shares revert if the marriage does not subsist for a year and a day. Sev eral later acts apply to Scotland some of the principles of the English Married Women's Property Acts. These are the Married Women's Property (Scotland) Act of 1877, which protects the earnings, etc., of wives, and limits the husband's liability for ante nuptial debts of the wife; the Married Women's Policies of As surance (Scotland) Act, 188o, which enables a woman to contract for a policy for her separate use; and the Married Women's Prop erty (Scotland) Act, 1881, which abolished the jus mariti.

The husband's courtesy is recognized, and a widow has a lif B rent of a third of the husband's heritable estate, unless she has accepted a conventional provision. By the Married Women (Scotland) Act, 192o, a wife can dispose of her estate as though she were unmarried, and any deed executed by her with reference to her heritable estate in Scotland is as valid as if carrying her husband's consent.

Continental Law.

On the continent of Europe and especially among the Latin nations (after age-long vicissitudes of varying custom and procedure possibly derived from an infiltration of Teutonic law and principle into the civil code) the main ideas of Roman jurisprudence became established as the bases of the law governing the marriage relation. The leading feature in modern Continental marriage law is the community of goods between hus band and wife. Of this system it is said "the community is not re garded in French law as a legal entity except for the purposes of taking an account. It is somewhat like a private partnership." It generally extends to all property of the husband and wife and to the income or other proceeds derived therefrom. It ex tends also to all immovable property of the husband and wife acquired during the marriage. The property thus acquired is liable to the debts of the spouses existing at the time of the marriage, to the debts contracted by the husband during the community or by the wife during the community, with the husband's consent, and to debts contracted for the maintenance of the family. When the community is dissolved an account is taken to ascertain what each partner owes to the partnership and what the partnership owes them, and after ascertainment the partnership property, if any, is divided equally between husband and wife. Certain modifications of this general principle have, however, been introduced in French legislation by a series of enactments dating from 1881 which some what assimilates the Gallic law to that of England in matters relating to personal savings or profits derived by a married woman from her individual exertions. More recently, a law dated July 13, 1907, has accorded to a married woman an absolute right to deal as she pleases with salary or business profits earned by her or with any property she may have purchased therewith ; whilst a further enactment of 1924 protects (subject to certain safeguards against fraud) the goods and property of a married woman from seizure by her husband's creditors, whether such property was owned by her before marriage, has since been inherited by her, or has been acquired by her personal exertions. Should she, however, squander her separate estate her husband may apply to the court to restrict her freedom of disposal.

In Denmark, Finland, Iceland, Norway and Sweden the legal effects resulting from the contract of marriage are practically identical, the result of the adoption by these countries of the Marriage Act of 1925 and the Inheritance Act of 1926 being to confer on husband and wife legal equality during lifetime and equal rights of inheritance upon the death of either of the parties. In these countries the principle of community of property between husband and wife is preserved concurrently with right to the pos session of separate estate. The communal property can only be encumbered or disposed of with the joint consent of the spouses, but the separate estate may be disposed of by either without reference to the other. Separate estate may consist of antenuptial property, not brought into the community upon the marriage, or such earnings of either spouse as are not required for the family maintenance. In case of desertion, bankruptcy or mismanagement of the joint estate by husband or wife the law permits of an equitable resettlement by the court. In Germany by the civil code which came into operation in 1900 (art. 1367) it is provided that the wife's wages or earnings shall form part of her Vorbehaltsgut or separate estate, which a previous article (1365) placed outside her husband's control. In Italy a law of July 17, 1919, abolished the last contractual incapacity of married women. Henceforth the husband has no legal right either to veto or control the acts of his wife or to interfere with her separate estate. In 1906 Switzerland enacted a statute conferring on married women contractual eman cipation. (W. W. P.) In each of the 48 States of the United States the status of husbands and wives is different. This makes it impossible to generalize except along broad lines. Practically every known variety of marital relationship has existed, ranging all the way from complete dominion of the male to something approaching equality of interests. Nowhere, however, is the wife the dominant party. The U.S. laws range from the early English common-law notion (to paraphrase Blackstone) that husband and wife are one, and that one is the husband, and the early Continental civil law notion (embodied in the community property doctrines of Spain and France) that the community "is a partnership which begins only at its end" (Justice Oliver Wendell Holmes), down to the most modern theories as to what constitutes a working arrangement between the parties. The years since about 1850 have seen great changes, the trend now being definitely in the direction of expanding the wife's rights and powers, both as to property and person.

The marital status is, in essence, lifelong monogamy. Under the Mormons polygamy flourished for a time but it was eventually outlawed. While marriage is called a contract, it is nevertheless one that, once made, cannot be unmade by the parties. The State must be called in to revoke the contract, and even the State will refuse to act except for special reasons. Husband and wife agree to cohabit they pledge mutual fidelity so long as they live. Di vorce (q.v.), practically the only way to bring marriage to an end short of death, is generally granted only where one of the parties has been unfaithful or has in some way made living together dangerous or impossible. Some States refuse to revoke the con tract for any cause short of infidelity. One State, South Carolina, refuses to do so at all. No State will do so merely because the parties want it done.

Personal Rights.

The marital contract effects other changes almost as startling. In the field of personal rights women have not advanced as far as they may think from the days when the Eng fish wife was simply one of her husband's "chattels," when he was romantically supposed to be privileged to beat her "with a stick no bigger than the wedding ring," and to dictate wiiere she should live and what she should do. The husband is everywhere to-day the head of the household and he alone chooses the family domi cile. This is true even in the community property States in which the wife in other respects enjoys great personal freedom. In Virginia the wife must observe "the Pauline injunction to remain subject to her husband," and this might be matched by equally poetic legislative language in other States. In most States the husband cannot be sued for damages for beating his wife, al though he can be proceeded against criminally for it. He cannot be sued in most States for negligence, libel, slander, false im prisonment or assaults of any kind upon his wife. There is equality between the sexes here, for neither can a wife be sued by her husband in such circumstances.

The marital relationship itself is to a large extent a law unto itself. Husband and wife agree to intercourse, exclusive and un limited. It is therefore impossible in most States for the husband to commit the crime of rape upon his wife, even if suffering from venereal disease, as the wife's consent is presumed. All she can do is run away or get a legal separation or divorce (on the ground of cruelty, perhaps). Just as the wife cannot easily control intercourse, so it is in many places difficult for her to control childbirth. Many States forbid the dissemination of contracep tive information, except in case of disease. And abortion, except in case of danger to life, is also generally held criminal.

So far as names are concerned, the husband's name is com monly assumed by the wife, but there is no legal obligation to do so. This is entirely a matter of custom, not of law. A few spo radic administrative rulings to the contrary are found here and there in connection with passports, pay-checks, etc., but they are wrong in principle.

While there is in general no liability for personal torts as be tween husband and wife, torts as between husband or wife and a third person are a different matter. Formerly the husband was liable for his wife's torts ; she on the contrary was never liable for his. This rule no longer prevails to any extent. The husband is generally liable for his wife's tort, if at all, only where com mitted in his presence or, more commonly, by his order. Formerly the husband alone could sue for his wife's injuries; she on the contrary could never sue for his. This rule has been abrogated somewhat. Now in most States the wife can sue for her own injuries. But the husband also can sue for loss of his wife's society (known as "consortium"), her services and wages, and medical expenses paid by him. The wife on the contrary cannot sue for loss of his "consortium" or support, where it is the hus band who was injured.

A wife is liable for the crimes which she commits. There is sometimes a rebuttable presumption of innocence, however, if the crime be committed in the presence or under the order or coercion of her husband, and if the crime itself be minor in its nature. Husband and wife formerly could not be witnesses for or against one another. This has been largely done away with, except for the privilege not to reveal confidential communications.

Marriage affects the citizenship of women as it does not affect that of men. At one time a wife's nationality automatically fol lowed that of her husband. Now she keeps her own nationality upon marriage and, if a foreigner married to an American, must be naturalized in order to become an American herself. She needs only one year of residence, however, whereas a man in a similar case needs five.

Property Rights.—It is in the field of property that the great est changes have taken place. At common law the husband upon marriage took practically all his wife's personal property and all the income from her land. The creation by courts of equity of a separate equitable estate for her beyond the reach of her hus band only partially mitigated the hardship. This condition lasted until well into the last century. The first Married Women's Prop erty Acts were passed in 1848, and from that time on the change was rapid. In most States married women can now own property of any sort just as though they were single. The degree of control which they exercise over it varies in different States. In some states they have full control; in others the husband must join in the transfer, sometimes of personalty, sometimes only of realty; in others, he or the court may constitute her a "free trader." When it comes to her power to contract, there is equal variety. In no State are husband and wife permitted to contract to dissolve the marital relation, that being a matter which, once consum mated, the State alone can dissolve. In many States she has com plete freedom to contract with third persons, but not with her hus band. In others, she can contract to employ him to work for her, but cannot contract to be employed to work for him. In still others she can enter into contracts with third persons only after she has been declared a "free trader" by the courts or her husband. Her power to contract also varies in subject-matter. In some States she can form a partnership, borrow or lend money, act as surety or guarantor, appoint agents, etc. ; in others she can do one or more of these things but not all.

When it comes to services and earnings, the same diversity ex ists. Formerly her earnings belonged to her husband and she was by the same token bound to render services to him without pay. Now most States permit her to keep her earnings when working for third persons outside her home. If, however, she work for a third person inside the home, her earnings generally belong to her hus band, unless he make her a present of them by "emancipating" her. If she work for her husband outside the home, some States declare her entitled to wages, others not. If she work for her hus band inside the home, no State in the union will let her have wages for it.

Correlative with the wife's services to her husband is the hus band's support of her. This is an enforceable duty, whereas the wife's duty of service is not. Formerly the husband did not owe any such duty, even though he took all her property on marriage. The rule was early established, however, that if he refused to supply her with "necessaries" (food, clothing, shelter and medical expenses, varying in quality according to his rank and wealth), she could order them for herself and charge them up to him. At present the husband's obligation of support is in most states well defined, the failure to support his wife furnishing ground for di vorce in some States, for separation in others. The obligation lasts only during his lifetime. A few States have written a more modern viewpoint into their statute books by declaring support to be a mutual obligation. As generally interpreted, however, this does not prescribe any financial contribution from the wife, but only such assistance as she would naturally render in taking care of the house, children, etc., while upon the husband falls the financial burden. Some few States specifically require the wife to support her husband where she has property and he is infirm and without any means of support. Elsewhere when he comes to such a pass she need not lift a finger to help him.

Closely bound up with property rights while living is the mat ter of these same rights of ter death. Both husband and wife are nowadays competent to make wills. Formerly a wife was not. Frequently a woman's will is revoked by her subsequent marriage, or else marriage followed by the birth of issue; a man's will, by marriage and birth of issue. In some States a subsequent marriage or birth of issue only revokes the will pro tanto.

In some few States dower and curtesy still exist. In most of those States the wife may completely disinherit her husband, since curtesy only attaches to such of the wife's realty as she does not dispose of during her lifetime or will away at death. Not so the husband. He cannot by will as a rule deprive her of her dower, which attaches to all the realty which he owned during his life time and in which she had not released her claim to dower. In most States, however, neither dower nor curtesy any longer exists. Instead there have been substituted a great variety of rights, for the most part assuring to the survivor some portion, even if a small one, of the deceased spouse's estate.

Where there is no will, the personal estate is generally di vided up between the survivor and the children, or the survivor and the nearer relatives if there be no children. In some States the husband gets all on his wife's death, whereas she on his death must share with children or other relatives. In some States there is strict equality. The realty as a rule goes to the heirs, with dower or curtesy or some form of life-interest only to the surviving spouse. In some States realty and personalty are treated alike and the surviving spouse shares in the corpus, not merely in the income. The inheritance laws of the different States show such marked diversity that it is almost impossible to generalize. But the trend is toward giving a larger share to the wife, as distin guished from more distant relatives, making total disinheritance impossible, and establishing equality as between the sexes.

Divorce is the other method besides death of bringing marriage to an end. It is unlike death, however, in that the husband's obli gation of support, generally termed alimony, survives it. Where the husband obtains the divorce the wife generally forfeits her right to it. Alimony may be paid in a lump sum or in instalments and, if the latter, may be raised or lowered in amount from time to time, depending on the husband's changing economic circum stances. It continues sometimes even after the wife has married again. It is, however, extinguished at the husband's death, or at hers. Judges are coming more and more to take into considera tion the wife's property and earning capacity, if any, and to fit the size of the alimony accordingly.

Community Property.

The theory of joint ownership of property acquired after marriage is undergoing an interesting de velopment in the eight community property States. These States derive from the civil law. The theory of ownership varies from that of legal title in the husband, with or without an equitable in terest in the wife, to so-called corporate or partnership title. The husband is everywhere in practical control, although the limita tions on his power of disposal are many. At death or dissolution of the marriage the property is as a rule divided equally.

Children.—The relationship of father and mother to their children has undergone a profound change since the middle of the i9th century. Formerly the children's father was their natural guardian, had custody of their persons and property, was entitled to their services and earnings, and, on his death, could will them away to someone other than their mother. There are still a few States where fathers may will away their children. But for the most part, mothers are now recognized as joint guardians of the persons of their children and as alone entitled to their custody on the death of the father. In the majority of States the father is still entitled to his children's earnings and services, in exchange for which he must support them. Upon his death the mother be comes charged with their support and is in turn entitled to their earnings. In some States these rights and duties have been made the mutual obligation of both parents.

The above brief description paints a chaotic picture, perhaps, but one which reveals a growing interest in the subject and cease less experimentation. The United States has been going through a period of change, a period of the growth of a critical awareness of this as the most important of its institutions. Each State has experimented for itself according to its own ideas on the sub ject, citizenship alone being a Federal matter. Because of the re sulting chaos many have advocated unification, either by Federal law or uniform State legislation. Whether the latter method is practicable or not, the former would require amendment of the Constitution and a reversal of the prevailing theory of Federal government. It is not likely to succeed. The States will prob ably continue to experiment ; and the next 5o years should see a crystallization into a more set mould of the happier results of all this experimenting. (D. KN.)