WIFE ; HUSBAND and WIFE. Many of the legal incidents of the rela tion of husband and wife, or, as they are called in our law books, Baron and Feme, have been already noticed: the mode of contracting the relation under MAR RIAGE, and of dissolving it, under DI the provision for the wife out of her husband's real estates, made by the common law and modified by statute, is treated of under Dowse; and the right of the husband to a life interest in his wife's estates of inheritance if he sur vives her and has had by her a child capable of inheriting, under COURTESY or ENGLAND; the provision which may be made for the husband, the wife, and the offspring of the marriage belongs to the subjects of Settlement and Jointure ; and the nature of the property which the wife may have independently of her husband belongs to the subjects of Paraphernalia, Pin-money, and Separate Property. The article PARENT AND CHILD shows the relation of both parents to the children of the marriage.
The common law treats the wife (whom it calls a feme covert, and her condition coverture) as subject to the husband, and permits him to exercise over her reason able restraint ; but the wife may obtain security that the husband shall keep the peace towards her, and also the husband may have it against the wife. The hus band and wife are in some respects legally one person. Hence a wife cannot sue separately from her husband for injuries done to her or her property, or be sued alone for debts, unless her husband shall have abjured or been banished the realm; or unless where she is separated from him and has represented herself as a single woman, or where, by particular customs, she is permitted to trade alone, as in London ; but even here the husband should be joined as defendant by way of conformity, though execution will issue against the wife alone. For injuries to the wife's person or property the remedy is by a joint action. They cannot con tract with or sue one another; and com pacts made between them and all debts contracted towards each other when single (except contracts made in consideration and contemplation of marriage) are made void by their union. This rule does not, however, apply to debts due from the husband to the wife in a representative character as administratrix or executrix. They cannot directly make grants one to another to take effect during the joint lives ; nor can the wife, except in the ex ercise of a power, devise lands to her husband or to any other person unless (as it is said) by the custom of London and York; but the husband may devise or bequeath to his wife property to be en joyed by her after his death. They can not give evidence touching one another in civil matters, with this exception, that under the 6 Geo. IV. c. 16, s. 37, a bank rupt's wife may be examined touching the estate of her husband, and she is sub ject to the usual penalties if she sup presses or falsifies facts. In criminal
prosecutions for injuries done by either party to the person of the other, the injured party may be a witness. With the person of his wife the husband takes the liability to her debts contracted before marriage ; but those debts are only re coverable during the wife's life. If she dies before him, he is relieved from that responsibility, whatever fortune he may have had with her, except that he must apply to the discharge of such debts any assets which he acquires as his wife's ad ministrator. As the wife is supposed to be under the perpetual control of her husband, she is free from responsi bility for offences short of murder and treason committed at his instigation—the evidence of that instigation being his presence during the commission of the offence. For the same reason all deeds executed by her are void, unless by virtue of powers given to her or under the guarantee of certain solemnities the ob ject of which is to ensure her free agency. A disposition by a woman of her property after the commencement of a treaty for marriage, without the privity and con currence of her intended husband, is con sidered by courts of equity to be fraudu lent, and will be set aside after the mar riage; and by the act 1 Vic. c. 26, passed in 1837, a will made before marriage, either by a man or a woman, is revoked by the subsequent marriage of the party who has made it. [WILL AND TESTA MENT.] This legal identity cannot be dissolved by any voluntary act of the parties. Con sequently no deed of separation, unless it contains an immediate and certain pro vision for the wife, and no advertisement or other public notice will relieve a hus band from the liability to provide his wife with necessaries fitting to her rank in life (the question of fitness being de cided by a jury), or from the duty of paying the debts contracted for such ne cessaries, if she has been driven from his house by his misconduct. On the other hand, a wife cannot recover at law from her husband from whom she lives apart any allowance which he has contracted with herself to pay her in consideration of the separation, if he desires that their union should be renewed. A deed of separation is not a sufficient answer to a suit promoted by either party for restitu tion of conjugal rights ; nor is it an an swer to the charge of adultery committed either before or after separation, for though "the ecclesiastical court does not look upon articles of separation with a favourable eye, yet they are not held so odious as to be considered a bar to adul tery." (Haggard's Consistory Reports, i. 143.) A divorce can only be obtained by act of parliament, as explained in ADM, TERY and DIVORCE. A separation may be obtained by sentence of divorce pro nounced by the ecclesiastical courts for conjugal infidelity or cruelty on the part of the husband ; but this is not a dissolu tion of the marriage.