Husband and Wife. The marriage-contract is for the joint lives of the parties, and comes to an end with the death of either; they cannot themselves put an end to it or escape from its obligations, except by means of a legal Divorce (q.v.) or Separation (q.v.). It is a not uncommon delusion among working-people that if a husband or wife runs away or disappears the deserted spouse may lawfully marry again; but this is not the case. If husband or wife disappears, and is not heard of for seven years, the party deserted may marry again without incurring the risk of a conviction for bigamy; but even in this case the second marriage is a nullity if the first husband or wife is alive at the time when it is solemnised. During its continuance the contract has important effects on the rights and mutual relations of the parties. The husband is, in law, the head of the house; he has a right to choose the family domicile, and to require his wife to cohabit with him there. He may sue and be sued, enter into contracts, and dispose of his property as freely as a single man; the modern English law permits him to bequeath his property without making any provision for his wife, and to bar her claim to dower in disposing of his landed estate. He is bound to maintain his wife and children; if, being able to maintain them, he neglects to do so, his goods may be seized and sold by the parish authorities, or he may be imprisoned for one month as a disorderly person. If he deserts his wife and family, leaving them to become a charge on the parish, he may be treated as a rogue and vagabond, and imprisoned for three months. If his wife leaves him without just cause he is not bound to support her, and he may compel her to return by bringing an action for the restitution of conjugal rights. But if there is just cause for separation—if, for example, the husband is guilty of what the law deems cruelty—as keeping a mistress in the house, or starving and beating his wife—the wife is not bound to return, and the husband will be liable for the price of necessaries ordered by her on his credit. When the parties are living together, the question whether the wife has authority to pledge her husband's credit must be decided on consideration of all the facts of the case. No authority is implied from the mere fact of marriage, and tradesmen are not safe in relying on the wife's assertion in such cases; but a woman who keeps her husband's house may be taken to have authority to order food and clothing suitable to their rank in life, unless the husband has taken steps to protect himself from liability, as, for example, by giving notice to the tradesman not to trust his wife. Much misconception prevails in regard to the extent of a wife's authority; and there is a class of small traders, called tallymen, who take advantage of the popular ignorance. They persuade working-men's wives to purchase dresses or other goods, to be paid for by installments; on default in payment, the husband is often made to pay heavily for his wife's improvidence, though it may be that in law he is not liable at all. In such a case it is sometimes best for the husband to allow himself to be taken into a county court, where the judge will see that the tallyman gets no more than his due. A policy of insurance, effected by a husband on his own life for the benefit of his wife or children, is protected against his creditors.
A married woman is called in law French femme coverte; she is protected by her husband and under his control, and the two are, for many purposes, one person in law. If she commits a crime in his company or under his coercion the crime is his, not hers; he is punished and she escapes; but this rule does not apply to treason, murder, and other heinous offences. Formerly she could sue only by her next friend, and if she was sued, her husband was joined; but modern rules permit her to sue and defend alone. At common law the wife's personal property vested in the husband; he took the profits of her land during the marriage; and if an heir was born of the marriage the husband became 'tenant by the courtesy of England,' and held the land for his own life if he survived his wife. He assumed her liabilities also, and might be sued for her ante-nuptial debts. But at an early period courts of equity decided that, where property was given for the separate use of a married woman, she herself should have the use and disposition of it; if such property came into the husband's hands he held it as trustee for her. This doctrine of separate use has been greatly extended by the Married Women's Property Acts of 1870, 1874, and 1882. These acts do not apply in their integrity to women married before they came into operation; it is therefore necessary in ascertaining the rights of a wife to know when she was married. Under the Act of 1882 a wife holds her realty and personality as her own separate property; she may enter into contracts relating to it, and dispose of it as freely as a feme sole. Her property is liable for her separate debts, and execution may issue against it, though not against her person. Her husband is not liable for her ante-nuptial debts, except to the value of any property which comes to him through her. She may insure her own or her husband's life for her separate use. All earnings of the wife are protected by the Married Women's Property Acts; and under an earlier act a woman separated from her husband may obtain a magistrate's order protecting her earnings. A woman who has property may be made liable under the poor-law for the maintenance of her husband and children.
Marriage is a 'valuable consideration,' and a settlement of property made in pursuance of the contract stands good even against creditors. Provisions for the benefit of children are 'within the scope of the marriage bargain.' A post-nuptial settlement, unless made in fulfilment of a previous bargain, is not made in consideration of marriage; it may be upset by creditors like any other voluntary transfer of property.
The old rule that husband and wife are one person has been so far set aside by legislation that some of the consequences deduced from it are now doubtful in point of law. Formerly, if property were given in equal shares to husband and wife and a third person, the husband and wife took half and the third person the other half; and it has been decided that this rule applies even in a case of a gift or will made since 1882. Again, it used to be held that a woman could not be convicted of stealing her husband's goods; but sections 12 and 16 of the Act of 1882 enable married persons to prosecute one another. Except in cases within the act, and cases of personal injury inflicted by one spouse on the other, husband and wife cannot give evidence in criminal proceedings against one another; thus, on a trial for bigamy, the first wife cannot be called to prove her own marriage. In civil actions the spouses are competent witnesses for and against one another.
A husband surviving his wife is entitled to her personal property not disposed of by her, and has a paramount claim to administer her estate. A wife surviving her husband is entitled to one-third of his personality not disposed of by him, and she has a claim to administer; she has also a claim to dower—i.e. a life-estate in one-third of his land, unless the claim to dower has been barred.
In the United States the law of husband and wife is based upon the common law of England as above explained. The legislation of the different states, however, has diverted the common law rules with somewhat varying effect in the direction of the recent English statutes, and considerably in advance of them upon the same lines. A long series of statutes, beginning at an earlier period than in England—about 1844—has now swept away the disabilities laid upon married women by the common law. Wives are now generally able to hold property, real and personal, in their own right, to enter into contracts, and to sue in their own names. They are on substantially an equal footing with unmarried women; and it is not uncommon for married women to carry on business in their own names and with full power to enforce contracts. The old rule that husband and wife are one person in law is now practically obsolete. A wife may contract with her husband and may sue him upon the contract, in some states directly, in others through the intervention of a guardian or trustee. The independent position conceded by the law to married women in the United States is a chief cause of the recent increase and frequency of divorce in that country.
The law of Scotland has specialties of its own. The husband is the legal curator of his wife; and if at the time of the marriage she have another curator, the office of this last expires. Thus actions brought against a wife must be brought also against the husband for his interest, and the husband must concur in actions raised by the wife. The husband further in his capacity of curator signs as consenter to the wife's deeds. The husband is liable for the ante-nuptial debts of his wife; but under the Married Women's Property Act, 1877, this liability is limited to the amount by which the husband receives profit from the marriage. The wife has power to bind her husband in so far as she acts with his authority and as his agent. With regard to furnishings to the family, the wife is presumed by law to be the manager of the household, præposita negotiis domesticis, and so to be authorised to bind the husband. This presumption can only be removed by inhibition or by private notice from the husband to tradesmen. The jus mariti, or husband's right, had the effect of transferring to the husband upon marriage all the personal property of the wife belonging to her at the time of the marriage, or acquired by her during its subsistence. It also gave the husband the rents and yearly income of her heritable property; but it did not extend over the wife's paraphernalia. Besides the jus mariti, the husband possessed the right of administration of his wife's heritable property. In virtue of this right, the husband's consent is necessary to all acts by which the wife deals with her heritage. Both of these rights may be renounced by the husband or excluded by special contracts and settlements; and with regard to marriages that come under the Married Women's Property Acts these rights are to a great extent extinguished.
The effect of the Married Women's Property Act, 1882, is to abolish the jus mariti altogether with regard to marriages contracted after its date; to vest in the wife as her own separate estate all the movable property acquired by her at any time. The statute practically does away with the husband's right of administering the income of the wife's estate. The earnings of married women and those of women living separate from their husbands are protected by prior statutes against the husband and his creditors. On the death of a wife the surviving husband has a liferent interest, called courtesy, in her heritable estate; and has the same interest in her movable estate as a widow has in the movable estate of her deceased husband—i.e. a share amounting to one-half if there are no children, and one-third if there are. This share, when it falls to a widow out of the estate of her deceased husband, is hers by virtue of the jus relictæ or relict's right. The widow has further, where she has no conventional provision, a right to the terce, which is a liferent of a third of the husband's heritable property.
See works by Lush (1884), Macqueen (1885), Schouler (Boston, 1882), Thicknesse (1884), and Crawley (1892).