Nonmarital Coverture

By Antognini, Albertina | Boston University Law Review, October 2019 | Go to article overview

Nonmarital Coverture


Antognini, Albertina, Boston University Law Review


Introduction

The doctrine of coverture, where a man and a woman become one upon marriage, is understood as a matter of positive law to be a relic of the past. Today, William Blackstone's oft-repeated definition of coverture sounds in an anachronistic register: "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, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything . . . ."2 The list of legal disabilities imposed on the wife by virtue of her coverture was lengthy and included, inter alia, the inability to devise land by will, the obligation to answer to her husband's "moderate correction," and the lack of capacity to sue or be sued without joining her husband in the action.3 Coverture also prevented wives from acquiring property in their names or retaining any earnings they may have gained during the marriage.4 Coverture was not limited to regulating the wife: it imposed concomitant duties on the husband who, given his wife's inability to own or manage property, was required to provide her with financial support.5

Needless to say, marriage no longer entails the complete erasure of a woman's legal identity. It does not require her to submit to her husband's physical chastisement nor does it strip her of her individual rights. Since the passage of the Married Women's Property Acts in the nineteenth century, a wife can also retain property in her own name.6 As such, a husband is not formally required to provide his wife with support during the relationship.7 When the marriage ends, all states allow spouses, irrespective of gender, to access property through equal or equitable distribution.8 Moreover, marriage is no longer limited to a man and a woman as husband and wife.9 It is thus mostly uncontroversial to conclude that the common law of coverture has by and large been "abandoned."10

Numerous scholars have, however, complicated the narrative of coverture's collapse. Jill Hasday, for instance, has shown that while the laws of coverture have "certainly not survived perfectly intact to the present day," we must nonetheless be attuned to how "the canonical story of coverture's demise overstates the changes that have occurred in family law over time."11 Hasday focuses on how laws regulating marriage-such as exemptions for marital rape, interspousal tort immunity, prohibitions on interspousal contracts, and the doctrine of necessaries-all preserve principles embedded in the common law of coverture.12 Richard Chused, in addressing the history of the Married Women's Property Acts, has debunked the notion that the passage of such laws did anything more than effectuate "only modest adjustments in coverture law, and that these adjustments generally confirmed rather than confronted prevailing domestic roles of married women."13 And, in considering how property rights were allocated between married couples after the supposed dismantling of the regime following the passage of the "earnings statutes," Reva Siegel has revealed how, "notwithstanding the putative abolition of coverture, women in the industrial era found themselves economically disempowered in marriage and impoverished at divorce-and still find themselves so today."14

What has received markedly less attention in the literature is how coverture may be lurking outside of marriage-how a body of law that once regulated relationships between husbands and wives now occupies a space where marriage no longer formally reaches. Correcting that omission is the task of this Article, which details how principles underlying coverture are alive and well in courts' current treatment of nonmarital couples. Coverture's influence in the case law is twofold: courts addressing property distribution outside of marriage rely on doctrines that have their roots in coverture and, in the process, actively preserve and perpetuate the principles undergirding coverture in the nonmarital realm. …

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