Married Women's Property Law in Nineteenth-Century Canada

Law and History Review, Vol. 6, No. 2 (Autumn, 1988), pp. 211-257. Republished in Bettina Bradbury, ed. Canadian Family History: Selected Readings (Toronto: Copp Clark Pitman, 1992) 320-59

48 Pages Posted: 4 Jun 2013

See all articles by Constance Backhouse

Constance Backhouse

University of Ottawa - Common Law Section

Date Written: 1988

Abstract

In nineteenth-century Canada, women's property was transferred to their husbands upon marriage. The common-law rule disadvantaged women, particularly those abandoned by their husbands. This article chronicles the development of married women's property rights in the nineteenth century. The introduction of legislation that began to reform this field of law occurred in three waves: 1) enactments applicable to financially desperate married women, 2) protective measures insulating women's property from their husbands and their husbands’ creditors, and 3) laws adopted from British statute, aimed at giving women more control over their property. Married women's gains in property rights during the 1800s were initiated by provincial legislatures with varying motivations; paternalism, protection of women, desire to increase women's status, or reflexive veneration for the imperial British Parliament. Judges were hostile toward laws that protected women's property from their husbands, believing such laws posed a danger to the Canadian family. They conceived of the Canadian family as a necessarily patriarchal hierarchical structure, not as a partnership of equals. Most judges deliberately tried to debilitate the legislation by narrowly interpreting the scope of married women's rights to property and freedom of contract. Judicial conservatism was eventually overturned by legislative amendment. While the nineteenth century saw great gains in women's formal property rights, men continued to have markedly greater access to wealth and resources.

Keywords: married, marriage, women, woman, property, rights, law, legal, Canada, Canadian, legislative, reform, nineteenth, century, creditor, protective, protection, feminist, feminism, patriarchy, family, contract, access, wealth, husband, common law, disadvantage, abandon, abandoned

Suggested Citation

Backhouse, Constance, Married Women's Property Law in Nineteenth-Century Canada (1988). Law and History Review, Vol. 6, No. 2 (Autumn, 1988), pp. 211-257. Republished in Bettina Bradbury, ed. Canadian Family History: Selected Readings (Toronto: Copp Clark Pitman, 1992) 320-59, Available at SSRN: https://ssrn.com/abstract=2273326

Constance Backhouse (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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