1848: Married Women Win Property Rights

New York Married Women's Property Act 1848

Money jars, his and hers, with his filled completely
Economic Disparity. Mike Kemp / Getty Images

Enacted: April 7, 1848

Before married women's property acts were passed, upon marriage a woman lost any right to control property that was hers prior to the marriage, nor did she have rights to acquire any property during marriage. A married woman could not make contracts, keep or control her own wages or any rents, transfer property, sell property or bring any lawsuit.

Married women's property law was related to the legal doctrine of separate use: under marriage, when a wife lost her legal existence, she could not separately use property, and her husband controlled the property.

 Although married women's property acts, like that of New York in 1848, did not remove all the legal impediments to a married woman's separate existence, these laws did make it possible for a married woman to have "separate use" of property she brought into marriage and property she acquired or inherited during marriage.

In 1837, Thomas Herttell, a New York city judge, attempted to pass in the New York Assembly a bill to give married women more property rights.

Before 1848, a few laws were passed in some states in the U.S. giving women some limited property rights, but the 1848 law was more comprehensive. It was amended to include even more rights in 1860; later, married women's rights to control property were extended still more.

Women who worked for the passage of the 1848 law included Paulina Wright Davis, Ernestine Rose and Elizabeth Cady Stanton.

The first section gave a married woman control over real property (real estate, for instance) she brought into the marriage, including the right to rents and other profits from that property.

 The husband had, before this act, the ability to dispose of the property or use it or its income to pay for his debts.  Under the new law, he was not able to do that, and she would continue her rights as if she had not married.

The second section dealt with the personal property of married women, and any real property other than she brought in during marriage.

 These too, were under her control, although unlike real property she brought into the marriage, it could be taken to pay debts of her husband.

The third section dealt with gifts and inheritances given to a married woman by anyone other than her husband.  Like property she brought into the marriage, this also was to be under her sole control, and like that property but unlike other property acquired during marriage, it could not be required to settle her husband's debts.

Note that these acts didn't completely free a married woman from economic control of her husband, but it did remove major blocks to her own economic choices.

The text of the 1848 New York Statute known as the Married Women's Property Act, as amended in 1849, reads in full:

An act for the more effectual protection of the property of married women:

§1. The real property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the sole disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.

§2. The real and personal property, and the rents, issues, and profits thereof, of any female now married, shall not be subject to the disposal of her husband; but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted.

§3. Any married female may take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.

    After the passage of this (and similar laws elsewhere), traditional law continued to expect a husband to support his wife during the marriage, and to support their children.  Basic "necessaries" the husband was expected to provide included food, clothing, education, housing, and health care.  The husband's duty to provide necessaries no longer applies, evolving because of an expectation of equality of the sexes.

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