Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America

Abstract

In Thaler v. Thaler, a 1977 New York divorce case awarding alimony to husband, judge had occasion to summarize nineteenth-century shift in legal status of married women. At common law, he asserted, the husband and wife were orne and husband was one .... But with advent of married woman's property acts ... any previous justification for this one-way support duty faded.' In same year, however, an unemployed Brooklyn construction worker aired his reservations about his wife's employment by evoking old common law image of marriage. When get married, he said, you figure it's gonna be like one. Only it's always husband's one.2 The first of these comments suggests focus of this essay: challenges to common law doctrine of marital unity during a pivotal era of American law, roughly 1820-1860.3 The second comment reflects its emphasis: uncanny persistence of that doctrine far beyond its Christian and common law origins. The judge in Thaler v. Thaler based his decision, in part, on an 1848 statute extending to married women right to own their own property. He interpreted statute as a significant legal alteration in patriarchal family and implied that like many other statutes passed in common law jurisdictions during this period, it marked beginning of legal equality between wives and husbands.4 By contrast, this essay contends that married women's property acts failed to make such a significant alteration. Admittedly, if one defines patriarchy in husband-wife relationship as reduction of wife to status of property owned and controlled by husband, one could argue that it never existed in its purest form in Anglo-American legal tradition.5 Yet, basic elements of that patriarchal construct underpinned all of Anglo-American domestic relations law, and they continued to exist long after enactment of married women's property acts of mid-nineteenth century.