From Property to Power – A History of Women’s Rights in Marriage and Divorce in the U.S. | Nicole Evelina

March is National Women’s History Month and March 8 is International Women’s Equality Day. Despite representing 50.8% of people in the United States[1] and coming a long way since our nation’s founding, women are still considered a minority group. That is because, like people of color of both sexes, they have fewer rights compared to white men. In fact, 85% of the constitutions in the world now contain wording that protects the equal rights of women.[2] However, despite being one of the oldest in the world,[3] the U.S. Constitution does not. The U.S. is one of only 28 U.N. member nations[4] that doesn’t guarantee equal rights between men and women in its laws. Overall, we are 53^rd out of 153 countries that the World Economic Forum studies regarding gender equality.[5]

This is one of many reasons why we celebrate women’s history in March. I decided to write about how women’s power evolved in the United States for this blog. There was so much fascinating information that it turned into a three-part series.

Part 1 will focus on how women gained power within marriage.
Part 2 will cover women in the workplace.
Part 3 will show how women went from not even being considered citizens to holding the second highest office in the land.

Women Under Coverture
No discussion of women’s rights* in the United States can begin without an explanation of coverture. In 1769, the American colonies formally accepted the English system of law called coverture, which had prior to that time been in place informally but not committed to paper.[1] Under this system, women were “covered” under the law by a man from their first moment of existence. At birth, a woman’s rights were subsumed by her father. Upon marriage, they passed into her husband’s hands, so that during her entire life—unless she became a widow—she had essentially the same rights as a child, a slave, or a person declared mentally unfit.

The actual language of the law stated, “by marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage.”[2] Therefore, women did not legally exist. This made women highly dependent on the men in their lives for everything, especially as it related to money and the law. They couldn’t vote, enter into contracts, or be sued. As historian Catherine Allgor explains, “They could not own or work in business. Married women could not own land or any other property, not even the clothes on their backs, and upon the death of her husband, a woman’s legal agency would transfer to her nearest male relative…. [A husband] owned her labor and could even lease her to work for someone else, taking her wages. He had absolute ownership of his wife’s children. If he chose, he could take custody of children after a divorce and could refuse to allow his former wife to ever see them again; and he could seize her property from other heirs upon her death… And of course, a husband could legally beat his wife, or ask that she be remanded to prison or an asylum…When it came to their rights as specifically women and wives, legally the only difference between a slave and a married woman was that a husband could not sell his wife…and even these distinctions were sometimes shaky.”[3]

In the American colonies, ending a marriage was even more difficult than being in one. While some marriages were “dissolved,” divorce as it is defined today was rare until the late 19^th century. For women in the southern colonies, divorce was not an option because they followed English law. However, women in the northern colonies had it little better; they could only divorce their husbands if they could prove adultery, desertion or bigamy.[4]

These restrictions eased somewhat after the Revolutionary War, partly because people began to think that if colonies could leave their king, why couldn’t a husband leave his wife?[5] However, proof of cause still had to be provided, i.e. that one spouse had committed the crimes listed above, or were physically cruel, had threatened their life, did not provide economically or refused their marital duty in the bedroom.[6]

Laws Begin to Change
The first American law that permitted a woman any control over her own property was passed in Connecticut in 1808. It allowed a woman to leave a will and have her bequests honored.[7] But that was power only after death. Similarly, widows had the right of “dower,” which is the right to property they brought into the marriage, as well as to one-third of their husbands’ estate.[8] But again, this power only came after his death.

From 1821-1931, a series of marriage reform laws began to chip away at the stranglehold coverture had over women’s lives. For most of the 19^th century, states passed a series of marriage reform laws aimed at granting women greater property rights, but they varied widely by state. The first state to act, in 1839, was Mississippi, which granted women the right to hold property in their own names with the caveat that they had to have permission from their husbands.[9]

In 1849, New York issued one of the most sweeping changes to marriage law under the Married Women’s Property Act,[10] which granted a married woman separate control over any rent or profit earned from property she held at the time of her marriage and protected it from her husband’s creditors. In addition, if a married woman was given property during her marriage through a grant or bequest, such as inheriting from her father, it was under her control, not that of her current or future husband. New York expanded women’s rights in 1860 with a reform statute stating “the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property.”[11] For the first time, women had full control over the money they earned.

During this period, divorce became increasingly common, though adultery or cruelty still were really the only grounds.[12] This was due in part, at least to the increasing economic independence changes in marriage law gave to women. Divorce was expensive, so previously only the higher classes could afford to bring suit, which many did not out of fear for their reputation and social standing. But now some women’s rights advocates—including Victoria Woodhull, the first woman to run for president of the United States in 1872—began to advance the belief that the law and religion should have nothing to do with marriage or divorce.[13] Woodhull famously proclaimed that she believed a marriage occurred when two people fell in love and dissolved when they were no longer in love.[14]

In 1871, cruelty, one of the most common reasons for divorce, became illegal for the very first time when Alabama became the first state to outlaw the beating of one’s wife. Previously, according to lore, a husband was only allowed to whip his wife with a switch no bigger than his thumb (which is where we get the phrase “rule of thumb”).[15] Other states attempted to follow, with mixed results. Maryland made wife-beating illegal in 1882,[16] but it wasn’t until 1920 that it was formally illegal in all states, and not until 1970 that domestic violence was treated as a serious crime under the judicial system.[17]

20th Century Progress
By the year 1900, every state had passed legislation granting married women the right to keep their own wages and to own property in their own name.[18] The fight for the next three decades (1907-1931) was to allow women to marry foreign men (especially Asian men) without losing their own citizenship, which began with the Expatriation Act (also known as the Married Women’s Citizenship Act) of 1907.[19] The Cable Act of 1922 (also called the Married Women’s Independent Nationality Act), partially reversed this ruling, stating “the right of any woman to become a naturalized citizen of the United States shall not be denied or abridged because of her sex or because she is a married woman;”[20] however, a wife’s nationality was still dependent upon her husband’s status. This law was amended four times and repealed before the Nationality Act of 1940[21] allowed women to marry men of any nationality without loss of citizenship and restored the status of all affected by previous laws.[22]

In 1967, interracial marriage (meaning Black and White) was legalized in the Supreme Court case Loving vs. Virginia,[23] but is still not accepted in some places today. Two years later, California adopted the nation’s first “no fault” divorce law, allowing divorce by mutual consent. By 1975, no-fault divorce was common in all states.[24]

But the ability to own property, keep one’s wages and marry and divorce at will is just the beginning of how modern women gained the rights we have today. In the next edition, we’ll look at women in the workplace and how we went from being regarded as the “angel of the house” in Victorian times to working women, wives and mothers today.

Please keep in mind that women’s history is very complex, so these articles can only scratch the surface. In addition, these articles are written in general terms. In reality, women of the upper classes experienced the world very differently from those of the lower and each race of women has their own history and their own struggles that continue to this day.

[1] https://www.nyhistory.org/sites/default/files/newfiles/cwh-curriculum/Module%201/Resources/Resource%201%20Couverture.pdf

[2] https://www.jstor.org/stable/2123970, 360

[3]Allgor. Catherine. “Remember…I’m Your Man”: Masculinity, Marriage, and Gender in Hamilton.” Historians on Hamilton. Renee C. Romano and Claire Bond Potter, eds. New Brunswick, New Jersey: Rugters University Press, 2018, 104-106.

[4] https://www.routledgehandbooks.com/doi/10.4324/9781315820880.ch3

[5] https://www.routledgehandbooks.com/doi/10.4324/9781315820880.ch3

[6] https://www.routledgehandbooks.com/doi/10.4324/9781315820880.ch3

[7] https://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/married-womens-property-act-1848

[8] https://www.library.hbs.edu/hc/wes/collections/women_law/#:~:text=These%20marriage%20and%20property%20laws,legal%20existence%20from%20her%20husband.&text=Widows%20did%20have%20the%20right,third%20of%20their%20husbands’%20estate.

[9] https://mississippiencyclopedia.org/entries/married-womens-property-act/ and https://www.usnews.com/news/the-report/articles/2017-01-20/timeline-the-womens-rights-movement-in-the-us

[10] https://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/married-womens-property-act-1848

[11]https://www.law.yale.edu/sites/default/files/documents/pdf/Faculty/Siegel_TheModernizationOfMaricalStatus.pdf

[12] https://www.theatlantic.com/magazine/archive/1966/11/divorce-and-the-family-in-america/305942/

[13] MacPherson, Myra. “The Scarlet Sisters: Sex, Suffrage and Scandal in the Gilded Age.” New York: Twelve, 2014, 132-133.

[14] MacPherson, Myra. “The Scarlet Sisters: Sex, Suffrage and Scandal in the Gilded Age.” New York: Twelve, 2014, 132-133.

[15] https://www.jstor.org/stable/2702468 2144 – This has not been proven as a fact but is accepted into American and English folklore.