The following primary source readings from different times and places illustrate changing views regarding the issue of womens legal rights in marriage. Property rights include the legal rights to acquire, own, sell and transfer property, collect and keep rents, keep one's wages, make contracts, bring lawsuits, and, if seeking divorce, maintain some of the marriage assets and keep control and guardianship of the children.
Historically, a woman's property has often, but not always, been under the control of her father or, if she was married, her husband. Until the passage of specific laws, a husband had legal ownership over his wife's personal property and managerial rights over her real property. Children, considered property as well, remained in the husbands possession after divorce or separation.
The reality is that in the case of rights within marriage gender matters. More than getting the vote, or electing a few women to government, womens marriage rights have deeply touched the ways they have lived, thought, and organized their social and economic lives. From Englands traditional common laws to the United States today, where most divorces are initiated by women and where in many states 50% of all marriages will end in divorce, womens right to property have been key concerns.
Traditional Views of Women and Marriage:
William Blackstone, a classical theorist of the British common law, is often evoked to illustrate women's traditional legal status. He stated, "By marriage, the husband and the wife are one person in the law... the very being and legal existence of the woman is suspended during the marriage, or at least is incorporated into that of her husband under whose wing (and) protection she performs everything."
Ideas of female equality received a setback in post revolutionary France in a series of laws known as the Napoleonic Code, or the French Civil Code. Within France, the Code survived basically unaltered for more than 150 years. As Napoleon carried the Code throughout Europe in his military campaigns, it served as a model for womens marriage rights in countries from Italy to Poland.
The personal accounts of widows from rural and urban areas who lack control over their matrimonial property because of customary practice are revealed in this substantive report conducted by Human Rights Watch. The effects on all society of their frequent and extreme abuse points to the need for change. Information on the historical context of the practices, and recommendations to the government to improve both the law and negative traditions are included.
Challenges and Changes:
The British "merger of identities" doctrine law which retained womens property under the control of their husbands, governed family affairs in the early years of the United States. Mississippi was the first English colony to challenge this, passing a Married Women's Property Act in 1839 (3/5 of which dealt with transfer of real property in slaves from father to daughter so plantations would not be divided amongst son-in-laws). New York in 1848 was one of the first states to grant women any rights in personal and real property. By 1900 every state had given married women substantial control over their property.
In 1851, at the second national convention for Women's Rights in New York, Ernestine Rose made a speech so impactful that it was later reprinted and circulated. Her dramatic call for reason, Justice and humanity detailed in sometimes humorous ways why the basis of marriage laws throughout the United States should be changed.
In 1854 Barbara Leigh Smith Bodichon wrote a brief pamphlet, A Brief Summary in Plain Language of the Most Important Laws of England Concerning Women, which clearly and concisely stated the facts of women's legal disabilities. The pamphlet created a sensation, rousing public interest in the question. Bodichons work, along with others, led to the 1870 British Married Women's Property Act which created a major change in nineteenth-century British property law.
When Lucy Stone and Henry Blackwell were married, they protested against women losing their legal existence upon marriage (coverture), and stated that they would not voluntarily comply with such laws. Their statement of dissent was read aloud at their wedding.
The Marriage Law of 1950 giving women full legal equality to men inside the
Hispanic tradition allowed women to maintain separate property in what are now the western states. Anglo-American fortiersmen kept this tradition which allowed married women to control and manage not only their own property but even that of their husbands. If womens property rights were infringed, they could seek redress in the courts. Today, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In addition, Puerto Rico is a community property jurisdiction. Four comments on lawyers blogs in California reveal complications in todays interpretations when divorce, which in the United States is mostly initiated by women, is contemplated.
I. Analyzing the Sources
1) Students are assigned the primary sources- one per student or per small group. For each source, they identity its main issues and goals. They seek to answer:
2) Students then present a summary the reading (who, what and where), and their analysis to the whole class. They might read portions of the piece aloud.
3) Class discusses 1) possible commonalities or differences between the sources, 2) how the issues the sources focused on might relate to the larger issue of womens rights in general, 3) if any of the issues raised have any relevance to ones facing women in their community today.
II. Identifying the Obstacles
Students list obstacles to improving womens rights within marriage. They then prioritize the list according to what they determine were most debilitating. They might discuss any changes which they feel resulted in disadvantages to men.
III. Role Playing the Personalities
Students fill the roles of some of the central characters in the readings. They might pick a selection from the reading as part of their dramatic readings, They should consider the possible personality of the person and some descriptive words they might have used.
To represent the traditional place of women within marriage: the ideas of William Blackstone, Napoleon, Chinese peasants resisting the 1950 Marriage Code, a Kenyan male defending customary practices.
To argue for change: Leigh Smith Bodichon. Ernestine Rose, Henry Blackwell, Li Kuei-Ying, any one of the widows from Kenya.