Dissolution of Marriage by Death

Abstract

The vast majority of marriages are still dissolved by the death of one of the spouses. In marriage it is divorce that is pathological and abnormal. Even today only some 15 per cent of English marriages are dissolved by orders made by men on the authority of the law. The law governing distribution of property on the death of a party to a marriage is therefore an important part of family law. In the words of T. Plucknett: ‘The law of succession is an attempt to express the family in terms of property’.2 By historical accident, resulting from the struggle for jurisdiction between the church courts and the courts of common law on the one hand, and then between the Court of Chancery and the common law courts (more narrowly defined) on the other, the law of succession to property on death became separated from rights to property and duties of maintenance between married people and parents and children inter vivos. It was this divided jurisdiction and the decline in the authority of the church courts from the sixteenth century that largely contributed to the final gross legal deformity; that (i) all a woman’s personal property was conveyed to her husband by the wedding ceremony, which also transferred to him the right to manage, control and draw the income from her real property; (ii) a wife had an unenforceable ‘right’ to be maintained unless she committed adultery; and (iii) a husband had complete ‘freedom’ of testation, that is, to dispose of his (including most of her) property at his death, and leave his wife and children destitute, but (iv) after the mid-seventeenth century, all these rules could be avoided by settlements of property ‘to the separate use’ of a married woman.