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A Brief Summary in Plain Language of the Most Important Laws Concerning Women; Together with a Few Observations Thereon . Bodichon, Barbara Leigh Smith, 1827–1891.
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page: 4

LAWS CONCERNING MARRIED WOMEN.


Marriage.

Matrimony is a civil and indissoluble contract between a consenting man and woman of competent capacity.

Prohibitions.

These marriages are prohibited:—A widower with his deceased wife’s sister; a widow with the brother of her deceased husband; a widower with his deceased wife’s sister’s daughter, for she is by affinity in the same degree as a niece to her uncle by consanguinity; a widower with a daughter of his deceased wife by a former husband; and a widower with his deceased wife’s mother’s sister. Consanguinity or affinity, where the children are illegitimate, is equally an impediment.

A lunatic or idiot cannot lawfully contract a marriage, but insanity after marriage does not make the marriage null and void.

A lunatic may contract a marriage during a lucid interval. Deaf and dumb people may marry by signs.

page: 5

The consent of the father or guardians is necessary to the marriage of an infant ( i.e. id est , a person under twenty‐one), unless the marriage takes place by banns. The consent of the mother is not necessary if there be a father or a guardian appointed by him.

Bigamy.

A second marriage while a husband or wife is living is felony, and punishable by transportation.

Breach of promise.

An agreement to marry made by a man and woman who do not come under any of these disabilities is a contract of betrothment, and either party can bring an action upon a refusal to complete the contract in a superior court of Common Law.

Celebration, Banns.

Marriages may be celebrated as a religious ceremony after the requisite public proclamations or banns, or as a secular form.

Civil marriage.

The object of the Act* for authorizing civil marriages was to relieve Dissenters and those who could not conscientiously join in the formulary of the Church. Due provision is made for necessary publicity, and the marriage can be legally contracted in a Register Office.


Superintendent Registrar.

Marriages in the Church of England (without banns or licence), marriages of Quakers, Jews, Dissenters, and Roman Catholics, and marriages according to the civil or secular form, must be preceded by a given notice from of the parties to the Superintendent‐Registrar of the district.

Scotch marriages.

The marriage law of Scotland is founded upon the Canon Law ( i.e. id est , rules drawn from Scriptures and the writings of the Church). In Scotland there are regular and irregular marriages. Irregular marriages are legal without any ceremony, and are of three sorts.

1. By a promise of marriage given in writing or proved by a reference to the oath of the party, followed by consummation.

2. By the solemn mutual declaration of a man and woman, either verbally or in writing, expressing that the parties consent to take each other for husband and wife.

3. By notorious cohabitation as man and wife.

Persons living in England and having illegitimate


6th and 7th of Wm. IV. chap. 85.

page: 6 children, cannot by going to Scotland, there marrying, and then returning, legitimatize their children in England. A domicile (or abiding home) in Scotland, and a marriage of the father and mother, legitimatizes the children in Scotland whenever born.

Foreign marriages valid.

Lawful marriages in foreign countries are valid in England unless they are directly contrary to our laws.

Marriage with a deceased wife’s sister is valid in England, if it has been celebrated in a country where such marriage is legal, provided the parties were at the time of the marriage domiciled in such country.

Married women no legal existence.

A man and wife are one person in law; the wife loses all her rights as a single woman, and her existence is entirely absorbed in that of her husband. He is civilly responsible for her acts; she lives under his protection or cover, and her condition is called coverture.

A husband has a right to the person of his wife.

A woman’s body belongs to her husband; she is in his custody, and he can enforce his right by a writ of habeas corpus.

Her personal property becomes his.

What was her personal property before marriage, such as money in hand, money at the bank, jewels, household goods, clothes, &c., becomes absolutely her husband’s, and he may assign or dispose of them at his pleasure whether he and his wife live together or not.

He takes her chattels real.

A wife’s chattels real ( i.e. id est , estates held during a term of years, or the next presentation to a church living, &c.) become her husband’s by his doing some act to appropriate them; but, if the wife survives, she resumes her property.

Equity.

Equity is defined to be a correction or qualification of the law, generally made in the part wherein it faileth, or is too severe. In other words, the correction of that wherein the law, by reason of its universality, is deficient. While the Common Law gives the whole of a wife’s personal property to her husband, the Courts of Equity, when he proceeds therein to recover property in right of his wife, oblige him to make a settlement of some portion of it upon her, if she be unprovided for and virtuous.

If her property be under 200 l. pound , or 10 l. pound a‐year, a Court of Equity will not interpose.

Her right to support.

Neither the Courts of Common Law nor Equity have any page: 7 direct power to oblige a man to support his wife,—the Ecclesiastical Courts ( i.e. id est Courts held by the Queen’s authority as governor of the Church, for matters which chiefly concern religion) and a Magistrate’s court at the instance of her parish alone can do this.

His power over her real property.

A husband has a freehold estate in his wife’s lands during the joint existence of himself and his wife, that is to say, he has absolute possession of them as long as they both live. If the wife dies without children, the property goes to his heir, but if she has borne a child, her husband holds possession until his death.

A married woman’s earnings not her own but her husband’s.

Money earned by a married woman belongs absolutely to her husband; that and all sources of income, excepting those mentioned above, are included in the term personal property.

A wife’s will.

By the particular permission of her husband she can make a will of her personal property, for by such a permission he gives up his right. But he may revoke his permission at any time before probate ( i.e. id est the exhibiting and proving a will before the Ecclesiastical Judge having jurisdiction over the place where the party died).

A mother’s rights over children.

The legal custody of children belongs to the father. During the life‐time of a sane father, the mother has no rights over her children, except a limited power over infants, and the father may take them from her and dispose of them as he thinks fit.

If there be a legal separation of the parents, and there be neither agreement nor order of the Court, giving the custody of the children to either parent, then the right to the custody of the children (except for the nutriment of infants) belongs legally to the father.

Responsibility of a wife.

A married woman cannot sue or be sued for contracts—nor can she enter into contracts except as the agent of her husband; that is to say, her word alone is not binding in law, and persons giving a wife credit have no remedy against her. There are some exceptions, as where she contracts debts upon estates settled to her separate use, or where a wife carries on trade separately, according to the custom of London, &c.

Responsibility of a hus‐

A husband is liable for his wife’s debts contracted before page: 8


band for his wife’s debts prior to marriage

marriage, and also for her breaches of trust committed before marriage.

Witnesses.

Neither a husband nor a wife can be witnesses against one another in criminal cases, not even after the death or divorce of either.

Wife cannot bring actions.

A wife cannot bring actions unless the husband’s name is joined.

A wife acts under coercion of her husband.

As the wife acts under the command and control of her husband, she is excused from punishment for certain offences, such as theft, burglary, housebreaking, &c., if committed in his presence and under his influence. A wife cannot be found guilty of concealing her felon husband or of concealing a felon jointly with her husband. She cannot be found guilty of stealing from her husband or of setting his house on fire, as they are one person in law. A husband and wife cannot be found guilty of conspiracy, as that offence cannot be committed unless there are two persons.

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