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Annie Besant
Marriage, As It Was, As It Is, And As It Should Be

In matters of business, difficulties arise on every hand: a married woman is incapable of making a contract; if she takes a house without her husband's knowledge and without stating that she is married, the landlord may repudiate the contract; if she states that she is married, the landlord knows that she is unable to make a legal contract, and refuses to let or lease to her, without heavy security. If she buys things she cannot be sued for non-payment without making the husband a defendant, and she consequently finds that she has no credit. If she is cheated, she cannot sue, except in cases covered by the recent Acts, without joining her husband, and so she has often to submit to be wronged. "A feme covert cannot sue without her husband being joined as co-plaintiff, so long as the relation of marriage subsists. It matters not that he is an alien, and has left the country; or that, being a subject, he has absconded from the realm as a bankrupt or for other purpose; or that he has become permanently resident abroad; or that they are living apart under a deed of separation; or have been divorced a mensâ et thoro; for none of these events dissolve or work a suspension of the marriage contract, and so long as that endures, the wife is unable to sue alone, whatever the cause of action may be. This disability results from the rule of law which vests in the husband not only all the goods and chattels which belonged to the wife at the time of the marriage, but also all which she acquires afterwards" (Lush's "Common Law Practice," 2nd ed., pp. 33, 34). The same principle governs all suits against a married woman; the husband must be sued with her: "In all actions brought against a feme covert while the relation of marriage subsists, the husband must be joined for conformity, it being an inflexible rule of law that a wife shall not be sued without her husband… If therefore a wife enters into a bond jointly with her husband, or makes a bill of exchange, promissory note, or any other contract, she cannot be sued thereon, but the action should be brought against, and the bond, bill, alleged to have been made by, the husband" (Ibid, p. 75).

The thoughtful author of the "Rights of Women" remarks that the incapacity to sue is "traceable to the time when disputes were settled by the judgment of arms. A man represents his wife at law now, because in the days of the judicial combat he was her champion-at-arms, and she is unable to sue now, because she was unable to fight then" (p. 22). The explanation is a very reasonable one, and is only an additional proof of the need of alteration in the law; our marriage laws are, as has been shown above, the survival of barbarism, and we only ask that modern civilisation will alter and improve them as it does everything else: trial by combat has been destroyed; ought not its remains to be buried out of sight? The consequence of these business disabilities is that a married woman finds herself thwarted at every turn, and if she be trying to gain a livelihood, and be separated from her husband, she is constantly pained and annoyed by the marriage-fetter, which hinders her activity and checks her efforts to make her way. The notion that irresponsibility is an advantage is an entirely mistaken one; an irresponsible person cannot be dealt with in business matters, and is shut out of all the usual independent ways of obtaining a livelihood. Authorship and servitude are the only paths really open to married women; in every other career they find humiliating obstacles which it needs both courage and perseverance to surmount.

Married women rank among the "persons in subjection to the power of others;" they thus come among those who in many cases are not criminally liable; "infants under the age of discretion," persons who are non compotes mentis (not of sound mind), and persons acting under coercion, are not criminally liable for their misdeeds. A married woman is presumed to act under her husband's coercion, unless the contrary be proved, and she may thus escape punishment for her wrongdoings: "Constraint of a superior is sometimes allowed as an excuse for criminal misconduct, by reason of the matrimonial subjection of the wife to her husband; but neither a son, nor a servant is excused for the commission of any crime by the command or coercion of the parent or master. Thus, if a woman commit theft, or burglary, by the coercion of her husband, or even in his company, which the law primâ facie construes a coercion, she is dispunishable, being considered to have acted by compulsion, and not of her own will" ("Comm, on the Laws of England," Broom and Hadley, vol. iv., p. 27). "A feme covert is so much favoured in respect of that power and authority which her husband has over her, that she shall not suffer any punishment for committing a bare theft, or even a burglary, by the coercion of her husband, or in his company, which the law construes a coercion" (Russell "On Crimes," vol. i., p. 139). "Where the wife is to be considered merely as the servant of the husband, she will not be answerable for the consequences of his breach of duty, however fatal, though she may be privy to his conduct. C. Squire and his wife were indicted for the murder of a boy;" he had been cruelly treated by both, and died "from debility and want of proper food and nourishment;" "Lawrence, J., directed the jury, that as the wife was the servant of the husband, it was not her duty to provide the apprentice with sufficient food and nourishment, and that she was not guilty of any breach of duty in neglecting to do so; though, if the husband had allowed her sufficient food for the apprentice, and she had wilfully withholden it from him, then she would have been guilty. But that here the fact was otherwise; and therefore, though in foro conscientiæ the wife was equally guilty with the husband, yet in point of law she could not be said to be guilty of not providing the apprentice with sufficient food and nourishment" (Ibid., pp. 144, 145). It is hard to see what advantage society gains by this curious fashion of reckoning married women as children or lunatics. Some advantages, however, flow to a criminal husband: a wife is not punishable for concealing her husband from justice, knowing that he has committed felony; a husband may not conceal his wife under analogous circumstances: "So strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child his parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband receives his wife, having any of them committed a felony, the receiver becomes an accessory ex post facto. But a feme covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord" (Ibid., p. 38). The wife of a blind husband must not, however, regard her coverture as in all cases a protection, for it has been held that if stolen goods were in her possession, her husband's blindness preventing him from knowing of them, her coverture did not avail to shelter her.

Any advantage which married women may possess through the supposition that they are acting under the coercion of their husbands ought to be summarily taken away from them. It is not for the safety of society that criminals should escape punishment simply because they happen to be married women; a criminal husband becomes much more dangerous to the community if he is to have an irresponsible fellow-conspirator beside him; two people – although the law regards them as one – can often commit a crime that a single person could not accomplish, and it is not even impossible that an unscrupulous woman, desiring to get rid easily for awhile of an unpleasant husband, might actually be the secret prompter of an offence, in the commission of which she might share, but in the punishment of which she would have no part. For the sake of wives, as well as of husbands, this irresponsibility should be put an end to, for if a husband is to be held accountable for his wife's misdeeds and debts, it is impossible for the law to refuse him control over her actions; freedom and responsibility must go hand in hand, and women who obtain the rights of freedom must accept the duties of responsibility.

A woman has a legal claim on her husband for the necessaries of life, and a man may be compelled to support his wife. But her claim is a very narrow one, as may be seen by the following case: – A man named Plummer was indicted for the manslaughter of his wife; he had been separated from her for several years, and paid her an allowance of 2s. 6d. a week; the last payment was made on a Sunday, and she was turned out of her lodgings on the Tuesday following; she was suffering from diarrhoea, and on the Wednesday was very ill. Plummer was told of her condition, but refused to give her shelter; the evening was wet, and a constable meeting her wandering about took her to her husband's lodgings, but he would not admit her; on Thursday he paid for a bed for her at a public-house, and on Friday she died. Baron Gurney told the jury that the prisoner could not be charged with having caused her death from want of food, since he made her an allowance, and under ordinary circumstances he might have refused to do anything more; the only question was whether the refusal as to shelter had hastened her death. The man was acquitted. A wife has also some limited rights over her husband's property after his death; she may claim dower, her wearing apparel, a bed, and some few other things, including her personal jewellery. Her husband's power to deprive her of her personal ornaments ceases with his life.

To redress the whole of the wrongs as to property, and to enable justice to be done, it is only necessary to pass a short Act of Parliament, ordaining that marriage shall in no fashion alter the civil status of a woman, that she shall have over property the same rights as though she were unmarried, and shall, in all civil and criminal matters, be held as responsible as though she were a feme sole. In short, marriage; ought no more to affect a woman's position than it does a man's, and should carry with it no kind of legal disability; "marital control" should cease to exist, and marriage should be regarded as a contract between equals, and not as a bond between master and servant.

Those who are entirely opposed to the idea that a woman should not forfeit her property on marriage, raise a number of theoretical difficulties as to household expenses, ownership of furniture, &c., &c. Practically these would very seldom occur, if we may judge by the experience of countries whose marriage laws do not entail forfeiture on the woman who becomes a wife. In the "Rights of Women," quoted from above, a very useful summary is given of the laws as to property in various countries; in Germany these laws vary considerably in the different states; one system, known as "Gutergemeinschaft" (community of goods) is a great advance towards equality, although it is not by any means the best resolution of the problem; under this system there is no separate property, it is all merged in the common stock, and "the husband, as such, has no more right over the common 'fund than the wife, nor the wife than the husband" (p. 26); the husband administers as "representative of the community, and not as husband. He is merely head partner, as it were, and has no personal rights beyond that;" he may be dispossessed of even this limited authority if he is wasteful; "he cannot alienate or mortgage any of the common lands or rights without her consent – a privilege, it must be remembered, which belongs to her, not only over lands brought by herself, but also over those brought by her husband to the marriage. And this control of the wife over the immovables has, for parts of Prussia, been extended by a law of April 16th, 1850, over movables as well; for the husband has been forbidden to dispose not only of immovables, but of the whole or part of the movable property, without the consent of his wife. Nor can the husband by himself make donations mortis causa; such arrangements take the form of mutual agreements between the two respecting their claims of inheritance to one another" (p. 27). In Austria, married couples are more independent of each other; the wives retain their rights over their own property, and can dispose of it "as they like, and sue or be sued in respect of it, without marital authorisation or control; and just as they have the free disposition of their property, so they can contract with others as they please. A husband is unable to alienate any of his wife's property in her name, or to lend or mortgage it, or to receive any money, institute any law-suits, or make any arrangements in respect of it unless he has her special mandate… If no stipulation is made at the marriage, each spouse retains his or her separate property, and neither has a claim to anything gained or in any way received by the other during the marriage" (p. 50). In the New York code (U.S.A.), "beyond the claim of mutual support, neither [husband nor wife] has any interest whatever in the property of the other. Hence either may into any enter engagement or transaction with the other or with a stranger with respect to property, just as they might do if they continued unmarried" (p. 95). The apportionment of household expenses must necessarily be left for the private arrangement of the married pair; where the woman has property, or where she earns her livelihood it would be her duty to contribute to the support of the common home; where the couple are poor, and the care of the house falls directly on the shoulders of the wife, her personal toil would be her fair contribution; this matter should be arranged in the marriage contract, just as similar matters are now dealt with in the marriage settlements of the wealthy. As means of livelihood become more accessible to women the question will be more and more easily arranged; it will no longer be the fashion in homes of professional men that the husband shall over-work himself in earning the means of support, while the wife over rests herself in spending them, but a more evenly-divided duty shall strengthen the husband's health by more leisure, and the wife's by more work. Recovery of debts incurred for household expenses should be by suit against husband and wife jointly, just as in a partnership the firm may now be sued; recovery of personal debts should be by suits against the person who had contracted them. Many a man's life is now rendered harder than it ought to be, by the waste and extravagance of a wife who can pledge his name and his credit, and even ruin him before he knows his danger: would not the lives of such men be the happier and the less toilsome if their wives were responsible for their own debts, and limited by their own means? Many a woman's home is broken up, and her children beggared, by the reckless spendthrift who wastes her fortune or her earnings: would not the lives of such women be less hopeless, if marriage left their property in their own hands, and did not give them a master as well as a husband? Women, under these circumstances, would, of course, become liable for the support of their children, equally with their husbands – a liability which is, indeed, recognized by the Married Women's Property Act (1870), s. 14.

It is sometimes further urged by those who like "a man to be master in his own house," that unless women forfeited their property in marriage, there would be constant discord in the home. Surely the contrary effect would be produced. Mrs. Mill well says, in the Essay before quoted from: "The highest order of durable and happy attachments would be a hundred times more frequent than they are, if the affection which the two sexes sought from one another were that genuine friendship which only exists between equals in privileges as in faculties." Nothing is so likely to cause unhappiness as the tendency to tyrannize, generated in the man by authority, and the tendency to rebel, generated in the woman by enforced submission. No grown person should be under the arbitrary power of another; dependence is touching in the infant because of its helplessness; it is revolting in the grown man or woman because with maturity of power should come dignity of self-support.

In a brilliant article in the Westminster Review (July, 1874) the writer well says: "Would it not, to begin with, be well to instruct girls that weakness, cowardice, and ignorance, cannot constitute at once the perfection of womankind and the imperfection of mankind?" It is time to do away with the oak and ivy ideal, and to teach each plant to grow strong and self-supporting. Perfect equality would, under this system, be found in the home, and mutual respect and deference would replace the alternate coaxing and commandment now too often seen. Equal rights would abolish both tyranny and rebellion; there would be more courtesy in the husband, more straightforwardness in the wife. Then, indeed, would there be some hope of generally happy marriages, but, as has been eloquently said by the writer just quoted, "till absolute social and legal equality is the basis of the sacred partnership of marriage (the division of labours and duties in the family, by free agreement, implying no sort of inequality), till no superiority is recognized on either side but that of individual character and capacity, till marriage is no longer legally surrounded with penalties on the woman who enters into it as though she were a criminal – till then the truest love, the truest sympathy, the truest happiness in it, will be the exception rather than the rule, and the real value of this relation, domestic and social, will be fatally missed." That some marriages are happy, in spite of the evil law, no one will deny; but these are the exception, not the rule. The law, as it is, directly tends to promote unhappiness, and its whole influence on the relations of the sexes is injurious. To quote Mrs. Mill once more: "The influence of the position tends eminently to promote selfishness. The most insignificant of men, the man who can obtain influence or consideration nowhere else, finds one place where he is chief and head. There is one person, often greatly his superior in understanding, who is obliged to consult him, and whom he is not obliged to consult. He is judge, magistrate, ruler, over their joint concerns; arbiter of all differences between them… His is now the only tribunal, in civilized life, in which the same person is judge and party. A generous mind in such a situation makes the balance incline against its own side, and gives the other not less, but more, than a fair equality, and thus the weaker side may be enabled to turn the very fact of dependence into an instrument of power, and in default of justice, take an ungenerous advantage of generosity; rendering the unjust power, to those who make an unselfish use of it, a torment and a burthen. But how is it when average men are invested with this power, without reciprocity and without responsibility? Give such a man the idea that he is first in law and in opinion – that to will is his part, and hers to submit – it is absurd to suppose that this idea merely glides over his mind, without sinking into it, or having any effect on his feelings and practice. If there is any self-will in the man, he becomes either the conscious or unconscious despot of his household. The wife, indeed, often succeeds in gaining her objects, but it is by some of the many various forms of indirectness and management." When marriage is as it should be, there will be no superior and inferior by right of position; but men and women, whether married or unmarried, will retain intact the natural rights "belonging to every Englishman."

In dealing with the wrongs of the wife, according to the present English marriage laws, the wrongs of the mother must not be omitted. The unmarried mother has a right to her child; the married mother has none: "A father is entitled to the custody of his child until it attains the age of sixteen, unless there be some sufficient reason to the contrary" (Russell "On Crimes," vol. i., p. 898). The "sufficient reason" is hard to find in most cases, as the inclination of the Courts is to make excuses for male delinquencies, and to uphold every privilege which male Parliaments have conferred on husbands and fathers. In Shelley's case the father was deprived of the custody of his children, but here religious and political heresy caused a strong bias against the poet. The father's right to the custody of legitimate children is complete; the mother has no right over them as against his; he may take them away from her, and place them in the care of another woman, and she has no redress; she may apply to Chancery for access to them at stated times, but even this is matter of favour, not of right. The father may appoint a guardian in his will, and the mother, although the sole surviving parent, has no right over her children as against the stranger appointed by the dead father. If the parents differ in religion, the children are to be brought up in that of the father, whatever agreement may have been made respecting them before marriage; if the father dies without leaving any directions, the children will be educated in his religion; he can, if he chooses, allow his wife to bring them up in her creed, but she can only do so by virtue of his permission. Thus the married mother has no rights over her own children; she bears them, nurses them, toils for them, watches over them, and may then have them torn from her by no fault of her own, and given into the care of a stranger. People talk of maternal love, and of woman's sphere, of her duty in the home, of her work for her babes, but the law has no reverence for the tie between mother and child, and ignores every claim of the mother who is also a. wife. The unmarried mother is far better off; she has an absolute right to the custody of her own children; none can step in and deprive her of her little ones, for the law respects the maternal tie when no marriage ceremony has "legitimated" it. Motherhood is only sacred in the eye of the law when no legal contract exists between the parents of the child.

Looking at a woman's position both as wife and mother, it is impossible not to recognise the fact that marriage is a direct disadvantage to her. In an unlegalised union the woman retains possession of all her natural rights; she is mistress of her own actions, of her body, of her property; she is able to legally defend herself against attack; all the Courts are open to protect her; she forfeits none of her rights as an Englishwoman; she keeps intact her liberty and her independence; she has no master; she owes obedience to the laws alone. If she have a child, the law acknowledges her rights over it, and no man can use her love for it as an engine of torture to force her into compliance with his will. Two disadvantages, however, attach to unlegalised unions; first, the woman has to face social disapprobation, although of late years, as women have been coming more to the front, this difficulty has been very much decreased, for women have begun to recognise the extreme injustice of the laws, and both men and women of advanced views have advocated great changes in the marriage contract. The second disadvantage is of a more serious character: the children proceeding from an unlegalised union have not the same rights as those born in legal wedlock, do not inherit as of right, and have no legal name. These injustices can be prevented by care in making testamentary dispositions protecting them, and by registering the surname, but the fact of the original unfairness still remains, and any carelessness on the parents' part will result in real injury to the child. It must also be remembered that the father, in such a case, has no rights over his children, and this is as unfair to him as the reverse is to the mother. As the law now is, both legal and illegal unions have disadvantages connected with them, and there is only a choice between evils; these evils are however, overwhelmingly greater on the side of legal unions as may be seen by the foregoing sketch of the disabilities imposed on women by marriage. So great are these that a wise and self-respecting woman may well hesitate to enter into a contract of marriage while the laws remain as they are, and a man who really honours a woman must reluctantly subject her to the disadvantages imposed on the English wife, when he asks her to take him as literally her master and, owner. The relative position is as dishonouring to the man as it is insulting to the woman, and good men revolt against it as hotly as do the most high-spirited women. In happy marriages all these laws are ignored, and it is only at rare intervals that the married pair become conscious of their existence. Some argue that this being so, small practical harm results from the legal injustice; it would be as sensible to argue that as honest people do not want to thieve, it would not be injurious to public morality to have laws on the statute book legalising garotting. Laws are made to prevent injustice being committed with impunity, and it is a curious reversal of every principle of legislation to make laws which protect wrongdoing, and which can only be defended on the ground that they are not generally enforced. If the English marriage laws were universally carried out, marriage would not last for a month in England; as it is, vast numbers of women suffer in silence, thousands rebel and break their chains, and on every side men and women settle down into a mutual tolerance which is simply an easy-going indifference, accepted as the only possible substitute for the wedded happiness which they once dreamed of in youth, but have failed to realise in their maturity.