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Re-Assessing the Married Women's Property Acts Carole Shammas In the middle decades of the nineteenth century, literally every state in the United States passed laws known as the married women's property acts or adopted a community property system. Around the same time, the British Parliament and the Canadian Provinces approved similar acts.1 Altogether these revisions represented the most substantial change in women's legal status in 700 years of the common law, and contemporary feminists considered the legal changes to be a great victory for the movement . In certain respects, this legislation was analogous to the emancipation proclamations and related acts concerning enslaved persons. Neither resulted in equality. Wives did not suddenly become the equals of- their husbands any more than freed African Americans became the equals of their former masters. But the legal changes, to a great extent, released both from the patriarchal authority of master and husband and set up new relationships between themselves and the state. Unlike emancipation, however, neither the married women's property acts nor the establishment of community property law has found a place in the pantheon of important historical events. Nor have the past two decades of research in women's history done much to boost their reputation. In this paper, I would like to focus upon these acts in the United States, how they have been evaluated by historians and why we might want to reconsider this evaluation both in respect to women's history and the history of American society in general. A Brief Description of the Married Women's Property Acts and the Community Property System Under the common law, as it was transferred to the colonies in the seventeenth and eighteenth centuries, a woman's personalty (all property except land and improvements) went to her husband when she married, and her realty came under his control. She became a feme covert. Ordinarily she had no need to write a will, because her personal property already belonged to her husband, and even after her death he continued to possess her real estate for life, a practice known as curtesy, provided a child had been born of the marriage. Afterwards it automatically devolved upon her descendants. She could not name guardians for her children and might even be excluded from guardianship by her husband's will. Nor could she © 1994 Journal of Women-s History, Vol 6 No. ι (Spring) 10 Journal of Women's History Spring sue in court without her husband. In exchange, the common law obligated a husband to maintain his wife in necessities suitable to his rank in life and guaranteed her, if she survived him, a lifetime dower right of one third of the profits from realty he owned during the marriage. Aside from this one obligation, he could do anything he pleased with his estate, which included all of the personalty his wife had brought to the marriage as well as the profits from her realty. In many English jurisdictions, dower had at one time included a one-third share of personalty forever. During the seventeenth century, however, Parliamentary statutes reduced dower to just the realty share for life and all colonies except Maryland followed suit. Once a widow, the woman regained her legal persona of feme sole, but her property situation depended upon what her husband left her in his will, or, if she renounced that, her dower.2 The only way a married woman could keep property out of the clutches of her husband was to resort to an equitable settlement. Equity jurisprudence, dispensed through the Chancery court, drew on innovative principles and procedures foreign to the common law but in some respects familiar to the Roman law of continental Europe.3 In the area of spousal property rights, Chancery recognized the concept of married women's separate property. From the late sixteenth century on, wealthy English women and their families found that under certain circumstances Chancery would uphold the right of a woman, most often a wife separated from her husband or a widow about to be remarried, to have a separate estate that was controlled by a trustee rather than her spouse. Although the exact reasons for the...


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