Married women

Since the Married Women’s Property Act, 1882, a married woman can acquire and hold separate property in her own name, and sue and be sued without joining her husband.

As to married women, a married woman was by the common law incapable of binding herself by contract, and therefore, like an infant, she could not be made liable as for a wrong in an action for deceit or the like, when this would have in substance amounted to making her liable on a contract.

There is some authority for the doctrine that by the common law both infants and married women are liable only for “actual torts” such as trespass, which were formerly laid in pleading as contra pacem, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which “sound in deceit.

But this statement, though broadly speaking true, is not accurate, and conceals from view the fact (which is of importance to a student who wishes to understand the way in which equity has told upon the form and substance of the Married Women’s Property Acts, 1870-1893) that the process of judicial legislation which gave to a married woman a separate estate, led to some very singular results.

This statement is, from a technical point of view, as every lawyer will perceive, lacking in precision, or even in strict accuracy, but it conveys to a student, more clearly than can otherwise be expressed in a few words, the real effect between 1800 and 1870 of the common law (in so far as it was not controlled by the rules of equity) on the position of a married woman in regard to her property.

In 1800, and indeed up to 1870, the property rights of a married woman were mainly determined by rules contained in two bodies of judge-made law, namely, the Common Law, and Equity.