husband and wife: Evolution of Marriage Law

The former Anglo-American law of marriage was chiefly characterized by the view that husband and wife are one legal personality, for whom the husband acts. Accordingly, the husband determined the marital domicile and was the dominant figure in the relation of parent and child. Nearly all the property of the wife passed to his absolute control for the duration of the marriage. The wife ordinarily could not make separate contracts, but if her husband refused support to her or to the children, she might pledge his credit to supply needs. After the death of a spouse, the survivor usually enjoyed a partial interest in the deceased's property. The wife's dower entitled her to one third of the husband's property on his death; curtesy, a similar right of the husband in the wife's property, accrued only if children had been born of the marriage.

In time, the equity courts recognized the wife's right during her husband's lifetime to a separate property in trust established for her benefit. By the late 19th cent., the need for a separate trust property disappeared, for Great Britain and all the American states adopted “married women's property” statutes, giving wives complete control over their property and their contracts. Most states provided that, in place of dower and curtesy, a surviving spouse was entitled to a certain share in the estate of the deceased spouse. A few states, following the Spanish law, recognized community property, whereby all property acquired during the marriage is owned by both husband and wife and is divided equally on the dissolution of the marriage.

Other features of the older laws on marriage have persisted, but many have been modified or eliminated. Certain old civil actions for injury to the marital relation that were once available only to the husband, such as actions for criminal conversation (adultery), actions for loss of consortium (marital services) because of physical injury to the wife, and for alienation of the wife's affections, are now either extended to the wife or denied to both parties.

Sections in this article:

• Introduction
• Evolution of Marriage Law
• The Marriage Contract
• Bibliography

The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2024, Columbia University Press. All rights reserved.

See more Encyclopedia articles on: Legal Terms and Concepts