Chapter 4.0. Women under the Traditional System of Coverture: Introduction

In the colonial period and through most of the 1800s, the legal status of free women depended upon marital status in a system of family law that is sometimes called ‘coverture.’ In fact coverture is just one of this system’s most characteristic features, as explained below.

Femmes soles: Unmarried women, including widows, were called femmes soles, or “women alone.” They had the legal right to live where they pleased and to support themselves in any occupation that did not require a license or a college degree restricted to males. Single women could enter into contracts, buy and sell real estate, or accumulate personal property, which was called personalty (or movable goods). It consisted of everything that could be moved—cash, stocks and bonds, livestock, and, where slavery existed, slaves. So long as they remained unmarried, women could sue and be sued, write wills, serve as guardians, and act as executors of estates.

Coverture: Marriage changed women’s legal status dramatically. When women married, as the vast majority did, they still had legal rights but no longer had autonomy. Instead, they found themselves in positions of almost total dependency on their husbands which the law called coverture. This was based on the assumption that a family functioned best if the male head of a household controlled all of its assets. According to the principle of coverture, a married woman could not own property independently of her husband. This applied especially to personalty (movable property): all personalty a woman brought to her marriage or earned during marriage, including wages, became her husband’s. He could manage it or give it away, as he chose, without consulting her. This sounds bad for women, and it was.

Marriage Settlements: There were also several other legal principles or arrangements that could mitigate the harshness of coverture, though not all of them applied to every woman. Some women benefitted from marriage settlements, which were special contracts that assigned certain properties (usually real estate) to the wife. A legal agent or relative (often the wife’s father or brother) would be appointed as a trustee to administer these rights. Such contracts were rare [at least in the surviving documents], however, and even illegal in some parts of the country.

Right to Necessities: Another, more broadly applicable rule that worked to mitigate the worst effects of coverture was a married woman’s right to be maintained in a manner commensurate with her husband’s social status. If he refused to provide for her appropriately, she could sue and win support from the courts. While waiting for the court’s judgment, she was permitted to run up charges at local stores and taverns—and her husband had to pay for them. Judges consistently applied this rule, called the doctrine of necessities, in order to prevent men from neglecting their wives. But the courts could not stop husbands from gambling or making bad investments. Women had no protection when their husbands proved irresponsible. If creditors pursued a husband for debts, his wife was entitled to keep only the bare necessities of life. This was usually defined as two dresses (so she would have one to wear while the other was being washed), cooking utensils, and a bed.

Limited Rights to Realty: Women’s rights to real property—the lands and buildings that constituted most wealth in early America—were more extensive than their rights to personalty. A husband could not sell or mortgage the realty his wife brought to their marriage without her consent. He could use it, but he could not convey it because a woman’s real estate, generally inherited from her father, was meant to stay in the family and descend through her to her children. A wife also had important rights to the real property that her husband brought to the marriage or purchased afterwards. He could not sell or mortgage it unless she signed a statement signifying her free consent, which was recorded with the deed. Few mortgagors or buyers would enter into an agreement without the wife’s consent. They knew that she retained her right to be maintained by the property in the event of her husband’s death, even if he died insolvent. Courts were careful to ensure that a wife signed a conveyance of her own free will and not because of pressure from her husband. A court officer questioned her apart from him to confirm that she actually agreed to the sale or mortgage.

Dower: One of the most important rights of a married woman was dower, which was designed to provide her with support during widowhood. It consisted of a life estate in one-third of the husband’s real property if there were children and one half if there were not. A “life estate” did not mean actual ownership of the property. It was meant only to provide for the wife as her husband would have done had he lived, under a legal system that recognized her position of dependency within the family. When a widow died, her dower lands descended automatically to her husband’s heirs or to his creditors.

Source: The above paragraphs are based on an essay by Marylynn Salmon, most of which is available at: http://www.gilderlehrman.org/history-by-era/womens-history/essays/legal-status-women-1776%E2%80%931830