The husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during her marriage, or at least is incorporated or consolidated into that of her husband, under whose wing, protection and cover, she performs everything. – Sir William Blackstone, Commentaries on the Laws of England 1765-1769
At the time of Blackwell’s statement, a woman, having married, gave up control of any income she had earned from wages, or property, real or personal. Everything was his. True, he could not sell her real property without her permission, but any income made from it belonged to him, any contracts made against it, must be made by him. Of course there were legal ways to preserve a woman’s property for her own use, but these did little more than remove it from her hands into that of a trustee. She still could not use the money or gain by it during the course of her married life, but it would be preserved for the security of her children, or for her use upon the death of her husband.
Not only did a woman forfeit her right to personal property, but she gave up her legal rights as well. She could not file a lawsuit, enter into any legal arrangements, or write a will or sign a contract. Legally speaking, she had no identity. She was an extension of her husband and nothing more. If one were fortunate enough to marry a good man with a democratic mind and an eye toward fairness, this was possibly just as well. Unity has been the preserving virtue of many a home and nation. It was, after all, the case for many. It was hardly the case for all.
Consider the example of Caroline Sheridan, who, in 1827 married George Norton. It was, from the start, a bit of a mismatch. He was 26, socially awkward, not very intelligent, and he had little money. Caroline, at 19, was a social star, beautiful, witty, and rich. This he seemed to have resented, though no doubt her wealth was a chief factor in his desire to marry her in the first place. George was also possessed of a violent temper which was easily exacerbated by drink. They were not very happy and separated many times, but their three children always brought them back together.
Until 1836, when, while Caroline was visiting her sister, George removed the children and barred her from the house, refusing to allow her any access to her children. As children were the property of the husband, this was his right, and she had little recourse. The income she made as a successful writer was also his, and this, too, he laid claim to. At the time of this last separation, he demanded she live with her brother, upon whom she was to depend for support. She was also to relinquish all claims to her children, including her right to see them. If she did not agree to the terms, he threatened to sue Lord Melbourne on the grounds of adultery. Of course she did not agree, and George went ahead with his suit.
Because Caroline had no legal identity of her own, George could not sue her. And that was likely not his aim, as Caroline had nothing to give him he did not already have. But because Caroline was his property, he could sue Lord Melbourne for damages, as any compromising relationship between them would devalue her as his wife. He could therefore recover his losses in a pecuniary manner. Perhaps this was him aim, after all. Whether she and Lord Melbourne had an affair is unclear, though they did indeed maintain a close friendship throughout their lives.
The suit, however, was a failure. There was no proof. The jury made the decision without ever leaving the box. George, having lost his claim, consequently had no chance of divorcing her, as a successful damages suit was a prerequisite for divorce. Despite his loss, and Caroline’s supposed victory, her reputation was tarnished. There was no going back to George now. But what to do about her children?
She turned to Thomas Talfourd, a serjeant-at-law and a member of Parliament, and persuaded him to introduce a bill granting mothers the custody of children under seven. The result was the Custody of Infants Act of 1839, which also granted a mother access to children under 16. A passing of a law, however, does not ensure its being observed. George still refused to let her see her children. Until tragedy struck, when the youngest of her sons was seriously injured in a riding accident. George agreed to let her see him, but he died before she could get to him. George thereafter relented, and allowed her access to her remaining boys.
In 1848, George was again in need of money. Caroline allowed him access to property left in trust to her in exchange for a separation deed and £500.
That same year, Lord Melbourne died and named Caroline in his will to be supported from his estate. In 1851, her mother died, leaving her £480 yearly, willed to her alone as her ‘separate estate,’ this with the intent of keeping it from George. Effectually it did, but in reality he could now claim that she no longer needed any assistance from him and he once more cut off his support. In retaliation, Caroline set her creditors after him to collect their debts, as any debts accrued by a woman were the responsibility of her husband. (This was a trick also used by Theresa Longworth when she wished to prove that she was in fact legally married to William Yelverton, with whom she exchanged vows by way of a secret ‘Irish marriage’. That suit failed.) Caroline’s suit raised questions about the nature of her separation, which was proved invalid as it was only by deed (which she had no rights to enter into as a married woman) and not by ecclesiastical decree.
These injuries drove her to take up her pen once more and in 1854 she wrote a pamphlet entitled English Laws for Women in the 19th Century, which was a passionate indictment of the laws governing married women. Then, in 1855 she published A Letter to the Queen on Lord Chancellor Cranworth’s Marriage and Divorce Bill, in which she challenged the double standard that was the right of men to sue on the grounds of adultery but did not offer the same recourse to women. She went a step further, accusing men of maintaining and defending their extra marital liaisons as their right and privilege as men. The Letter to the Queen eventually brought about the Divorce and Matrimonial Causes Act of 1857, which restored ‘the property rights and status of a single woman … as long as she remained apart from her husband.’ It allowed women to sue on grounds of adultery if her husband had also deserted her for a period of more than two years, or if he could be proved guilty of brutality, or of adultery committed with a relative, a man, or an animal. Providing proof of these was a tricky and scandalous business, but it was a step, even if only a small step, in the right direction.
In 1870, the first Married Women’s Property Act was passed, but the law that actually made it through the parliamentary mill was such a watered down version that what was affected was merely a small compensation to women who invested in the matrimonial practice. Women now kept possession of their earnings, inherited personal property, and small sums of money.
Throughout the ensuing years, further amendments were made to the laws governing the rights of married women (in fact it is said that there were perhaps eighteen such bills introduced to Parliament in the years between 1857 and 1882.) Neither can we forget the many others who brought about the advances toward women’s equality; Ursula Mellor Bright, Eliza Lynn and Barbara Leigh Smith, just a few among these.
But it was not until the passing of The Married Women’s Property Act of 1882 that women won any real victories. According to Mary Shanley (Feminism, Marriage, and the Law in Victorian England, 1859-1895), this Act ‘allowed the common law doctrine of coverture to include the wife’s right to own, buy and sell her separate property.’ According to the 1882 Act, a woman was now entitled to keep 1) any money earned in the form of income made from employment, trade, or use of skill, 2) any property inherited, including money in amounts up to £200, her 3) real property and earnings from it. It also dictated that 4) both parents were equally responsible for the upkeep of their children.
Once more quoting Mary Shanley, the Married Women’s Property Act of 1882 was ‘the single most important change in legal status of women in the nineteenth century. … In enabling married women to act as independent legal personages, it not only gave them the legal capacity to act as autonomous economic agents, but struck a blow at the whole notion of coverture and the necessary subordination of woman’s will to that of her husband. Quoting Jennifer Phegley (Courtship and Marriage in Victorian England) ‘The 1882 Law gave every married woman sole possession of everything she earned or inherited, before or after marriage. This act came the closest of any marriage law reforms of the century to allowing the existence of marriage in which both partners were equal under the law.’