Property Rights of Women
Although the Fifth Amendment to the U. S. Constitution makes no specific mention of the property rights of women, no one can reasonably argue that females are excluded from the property provisions of this amendment. In fact, the law regarding the property rights of women has become of increasing importance in contemporary society as more and more women have become concerned with their status in modern America.
As with most areas of the law, the property rights of women evolved from the customs of feudal England. However, development of the law in this area has been significantly affected by the affluence of today's world, and is in many ways representative of broader changes in society.
Reforms in English property law had, by the 16th century, given the major portion of the population the right to transfer land by sale, gift or will without the permission of the king or the landholder from whom the grant of land had come. Although the daughter of a landholder could inherit property, upon marriage most of this land would become the property of her husband.
The distinction between land which remained the property of the woman after marriage and that which became the husband's was based on a technical difference related to the title to the land. If the title gave the woman all of the rights that could possibly be given -- to use, possess and transfer the land -- she was said to hold the land in fee. If she owned land in fee, it remained hers even after marriage, although the income from such land became the husband's. When a woman was given or inherited only the right to grow crops on the land or live on the land for a limited number of years, as was the custom in feudal times, she was said to own "non-freehold" property. Property such as this came entirely under the husband's control upon a woman's marriage.
The effect of these property and marital laws upon the majority of married women in early England may not have been too great, as the chances of women becoming property holders were diminished by a preference for willing or giving the land to the male children in the family. The possibility that a woman from a wealthy family might be given land was, of course, much greater. For these women, the development of the concept of "separate property" in the equity, or church-administered, courts of the 16th century had a profound effect.
The equity court was in charge of enforcing rights which related to property that was passed by will. As the prevalence of non-freehold, income-producing property increased in 16th century England, the court of equity began to prevent a husband from disposing of property which had been given to his wife by will or as a gift. The court was, in effect, preventing income which the husband would collect from his wife's land, and which could potentially go to her and her children, from being lost through the sale of the property which produced the income. The wife alone was given the right to sell or give away this separate property during her life or to leave it to someone by will.
Legislative action which made the separate property concept applicable to all married women began in England about 1857 and culminated in the Married Women's Property Acts of 1870 and 1882. The demands of the industrial revolution greased the skids in this area, as the unfettered participation of women in commerce and trade became vital.
The evolution of the property rights of woman in this country drew from the English experience and partook of the unique environment and circumstances of the United States. From their very beginnings, the American colonies allowed and demanded a fuller participation by women in business and commercial life. Yet the law which was transplanted to this country in the 18th century was hardly reflective of this view. After marriage a woman had no control over the income from any of her property. In most states she could not give or sell property which had been hers before marriage without the consent of her husband.
Mississippi was the first state -- in 1839 -- to pass a series of laws correcting the imbalance that had been transported from feudal England to the United States. Missouri followed this example in 1849. But change was slow to come, and by 1913 there were still 20 states requiring the husband to sign a deed before a married women could dispose of her own interest in the land.
No mention of the property rights of women would be complete without some reference to a woman's right to her own name. It has long been the custom for a married woman to take the name of her husband upon marriage. This custom was so firmly established that it had the effect of law, even until quite recently in Missouri. However, a recent case decided by the Missouri Court of Appeals recognized the right of a married woman to retain her maiden name -- or use a surname other than that of her husband. Perhaps the best manner in which to evaluate the court's decision is to examine the history of the development of surnames in England.
Prior to the Middle Ages surnames were unknown in England. However, because of the limited number of available given names, identification of a person by only one name became more difficult as the population grew. At first, surnames were adopted and discarded at will, and it was not unusual for one person to have several different surnames in the course of a lifetime.
As far as a woman was concerned, there was no requirement that she adopt the surname of her father or of her husband when she married. Records of the time show that the husband might be known by one surname and the wife by another. In those cases where the whole family did use the same surname, women sometimes adopted the surname of the husband, while in other cases the husband adopted the surname of the wife. Ownership of property seems to have been the primary factor involved in determining the family surname: it was not uncommon for the family to adopt the surname of the wife if she were an heiress or if for other reasons she owned more property than the husband.
Under the doctrine of "coverture" in common law, it was the custom for the husband to become the guardian of the wife upon marriage, with her property rights becoming his. Under law, they became "one" . . . but the "one" was the husband. As a result, it became the custom for the two of them to be known by "one" name . . , that of the husband.
Today, as has been mentioned, the right of women to own and control property has been reestablished, at least in the United States. And, as a result, we see again the right of women to use their own names.
Leo Kanowity, an authority on women and the law, has described the underlying motivations for the passage of laws establishing women's property rights as " . . . conscious and deliberate legislative efforts to redress property and contract relations between wives and husbands and to remove previous procedural disabilities of married women. Responding in great part to the rising tide of individual and organizational protest against the married woman's status of legal subjugation to her husband, these laws generally granted married women the right to contract, to sue and be sued without joining their husbands, to manage and control the property they brought with them to marriage, to engage in lawful employment without their husband's permission, and to retain the earnings derived from their employment."
The law regarding the rights of women is still developing as women take a greater role in modern society. Although contemporary situations have drawn attention to this important area of the law, it has long been, and will continue to be, a vital part of our legal heritage.