In England, coverture determined the rights of married women, under Common Law. Coverture means protection of husband to wife. A feme sole transformed into a feme covert after marriage.
Feme covert was based on the doctrine of Unity of Persons i.e. the husband and wife were a single legal identity. This was based on notions of biblical morality that a husband and wife were one in flesh and blood.
The effect of coverture was that a married woman’s legal rights were subsumed by that of her husband. A married woman could not own property, execute legal documents, enter into a contract, or obtain an education against her husband’s wishes, or retain a salary for herself.
The principle of coverture was described in William Blackstone’s Commentaries on the Laws of England as follows:
“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; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.
Upon this principle of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquires by the marriage and not at present of the rights of property, but of such as are merely personal.
For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all contracts made between husband and wife, when single, are voided by the intermarriage.”
On this basis, a wife did not have an individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for, or against each other.
Medieval legal treatises, such as the Bracton described the nature of coverture and its impact on married women’s legal actions. Bracton states that husbands wielded power over their wives, being their rulers and custodians of their property. The institution of marriage came under the jurisdiction of ecclesiastical courts. It made wives live in the shadow of their husbands, virtually invisible to the law.
The principle of coverture subsisted throughout the marriage of the couple. It was not possible to obtain a divorce through civil courts, which refused to invade into the jurisdiction of the church. Adultery was the only ground available to obtain divorce.
The long struggle of wives under English Law speaks of the plight of women during this era. An allied consequence of the wife’s coverture was that she was not legally able to enter into a contract.
Apart from anything else, she had no property against which to enforce any order against her for payment under a contract; so it was only a small step for the law to conclude that she did not have the ability to enter into the contract in the first place. If, however, the wife went into a shop and ordered goods, say of food or clothing, which the law regarded as necessary for the household, the law presumed, unless the husband proved to the contrary, that she had entered into the contract in his authorised agent. So the shopkeeper could sue him for the price if the wife had obtained the goods on credit.
In the seventeenth century there was a development in the law relating to this so-called agency of necessity. It was an attempt to serve the needs of wives whose husbands had deserted them.
The legal position of matrimonial wrongs underwent a significant change with the passing of the Matrimonial Causes Act, 1857 in England.
Joseph Shine vs Union Of India (2018)