Unhappy Marriages and Unpaid Creditors: Chancery’s Enforcement of a Wife’s Right to Property within Marriage in Seventeenth- and Eighteenth-Century England

Abstract

Before statutory enactments in the nineteenth century granted married women a limited set of property rights, the separate estate trust was, by and large, the sole form of married women’s property. Although the separate estate allowed married women to circumvent the law of coverture, historians have generally viewed the separate estate as an ineffective vehicle for extending property rights to married women. In this Article, I reappraise the separate estate’s utility and argue that Chancery’s separate estate jurisprudence during the eighteenth century was a critical first step in the establishment of married women as property-holders. Separate estates guaranteed critical financial provisioning for wives seeking to escape unhappy marriages, allowed wives to recover debts from their husbands, and enabled wives to alienate property, thereby controlling transfers of wealth. Moreover, Chancery’s jurisprudence inscribed a married woman’s property rights into legal precedent, and, ultimately, ascribed individual identity to the married woman. Accordingly, Chancery’s support for the married woman’s separate estate can be seen as the beginning of the end of coverture.