Unhappy Marriages and Unpaid Creditors: Chancery’s Enforcement of a Wife’s Right to Property within Marriage in Seventeenth- and Eighteenth-Century England

Abstract:     
In a modern era in which wives can own and manage their financial assets, the idea that a wife could not hold legal claim to her own property seems archaic. Measuring the distance of women’s progress, historical accounts of married women’s property usually begin with statutory enactments that gave married women baseline property rights starting in America in the 1830s and 1840s and in England in the 1870s. A form of married women’s property existed before these statutes were on the books, however, beginning in late sixteenth-century England with a special type of trust called the separate estate which was created for the benefit of a married woman before, during, or after marriage. This article is an attempt to recover the nature as well as the significance of the separate estate. A new and detailed reading of the main corpus of separate estate cases – a set of cases that has long been overlooked and deserves to be unearthed – reveals how the separate estate was the forerunner to more modern forms of married women’s property and a key component in the development of married women as juridical beings and economic actors. The goals of this article are to recalibrate the history of married women’s property and deepen our understanding of the opportunities as well as the obstacles that have stood – and still stand – in the way of women seeking to be rightsholders.

Number of Pages in PDF File: 78

Keywords: English legal history, Chancery, married women's property, coverture, trusts, alimony

working papers series