Married Women's Property Law in Nineteenth-Century Canada

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