Revisiting the Married Women's Property Acts: Recapturing Protection in the Face of Equality

Abstract:     
This article discusses the shortcomings of 20th century judicial interpretations of the Married Women’s Property Acts and contributes as a result to the scholarly literature on the tenancy by the entirety. In addition, it has implications for teaching the doctrinal development of marital property interests and advocacy in property law litigation. Courts in the 20th century forgot the historical meaning and significance of the 19th century acts which aimed to protect the interests of married women and families from husbands’ debts. They seemed to uphold equality in property rights between spouses when protection was really at stake. By the 20th century, when jurisdictions like Massachusetts and New Jersey were interpreting their states’ Married Women’s Property Acts, recognition of the married woman’s interest in debt protection seemed to have been lost. Courts deliberately upheld practices that appeared directly to contravene the spirit and purpose of the original Acts, as these courts interpreted the acts to mean an equality which did not exist in fact. At stake were the rights of women who owned property in their own name as wives. Yet, the wives’ property was seized for their husbands’ debts. They were required to make their separate property over into tenancy by the entirety property; upon doing so, they were threatened by seizure of their property interest and foreclosure once creditors attached their husbands’ share of the property interest. In Hawaii, the shape of the litigation and the development of the doctrine took a different turn. The debtor husband was a widower. Yet, the court misread and misapplied the debt protection rules. The non debtor spouse was dead and the survivorship rules were irrelevant as a result. Pursuant to the traditional view of the tenancy by the entirety, he could have been held liable as the sole owner of the property. Nonetheless, Hawaii affirmed the ongoing significance of the tenancy by the entirety from the perspectives of doctrine and policy: protection of families and familial assets.

Keywords: marital property, tenancy by the entirety, gender, feminist legal theory, legal history

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