HUSBAND, properly the "head of a household," but now chiefly used in the
sense of a man legally joined by marriage to a woman, his "wife"; the
legal relations between them are treated below under HUSBAND AND WIFE.
The word appears in O. Eng. as _húsbonda_, answering to the Old
Norwegian _húsbóndi_, and means the owner or freeholder of a _hus_, or
house. The last part of the word still survives in "bondage" and
"bondman," and is derived from _bua_, to dwell, which, like Lat.
_colere_, means also to till or cultivate, and to have a household.
"Wife," in O. Eng. _wif_, appears in all Teutonic languages except
Gothic; cf. Ger. _Weib_, Dutch _wijf_, &c., and meant originally simply
a female, "woman" itself being derived from _wifman_, the pronunciation
of the plural _wimmen_ still preserving the original _i_. Many
derivations of "wife" have been given; thus it has been connected with
the root of "weave," with the Gothic _waibjan_, to fold or wrap up,
referring to the entangling clothes worn by a woman, and also with the
root of _vibrare_, to tremble. These are all merely guesses, and the
ultimate history of the word is lost. It does not appear outside
Teutonic languages. Parallel to "husband" is "housewife," the woman
managing a household. The earlier _húswif_ was pronounced _hussif_, and
this pronunciation survives in the application of the word to a small
case containing scissors, needles and pins, cottons, &c. From this form
also derives "hussy," now only used in a depreciatory sense of a light,
impertinent girl. Beyond the meaning of a husband as a married man, the
word appears in connexion with agriculture, in "husbandry" and
"husbandman." According to some authorities "husbandman" meant
originally in the north of England a holder of a "husbandland," a
manorial tenant who held two ox-gangs or virgates, and ranked next below
the yeoman (see J. C. Atkinson in _Notes and Queries_, 6th series, vol.
xii., and E. Bateson, _History of Northumberland_, ii., 1893). From the
idea of the manager of a household, "husband" was in use transferred to
the manager of an estate, and the title was held by certain officials,
especially in the great trading companies. Thus the "husband" of the
East India Company looked after the interests of the company at the
custom-house. The word in this sense is practically obsolete, but it
still appears in "ship's husband," an agent of the owners of a ship who
looks to the proper equipping of the vessel, and her repairs, procures
and adjusts freights, keeps the accounts, makes charter-parties and acts
generally as manager of the ship's employment. Where such an agent is
himself one of the owners of the vessel, the name of "managing owner" is
used. The "ship's husband" or "managing owner" must register his name
and address at the port of registry (Merchant Shipping Act 1894, § 59).
From the use of "husband" for a good and thrifty manager of a household,
the verb "to husband" means to economize, to lay up a store, to save.
HUSBAND AND WIFE, LAW RELATING TO. For the modes in which the relation
of husband and wife may be constituted and dissolved, see MARRIAGE and
DIVORCE. The present article will deal only with the effect of marriage
on the legal position of the spouses. The person chiefly affected is the
wife, who probably in all political systems becomes subject, in
consequence of marriage, to some kind of disability. The most favourable
system scarcely leaves her as free as an unmarried woman; and the most
unfavourable subjects her absolutely to the authority of her husband. In
modern times the effect of marriage on property is perhaps the most
important of its consequences, and on this point the laws of different
states show wide diversity of principles.
The history of Roman law exhibits a transition from an extreme theory to
its opposite. The position of the wife in the earliest Roman household
was regulated by the law of _Manus_. She fell under the "hand" of her
husband,--became one of his family, along with his sons and daughters,
natural or adopted, and his slaves. The dominion which, so far as the
children was concerned, was known as the _patria potestas_, was, with
reference to the wife, called the _manus_. The subject members of the
family, whether wife or children, had, broadly speaking, no rights of
their own. If this institution implied the complete subjection of the
wife to the husband, it also implied a much closer bond of union between
them than we find in the later Roman law. The wife on her husband's
death succeeded, like the children, to freedom and a share of the
inheritance. _Manus_, however, was not essential to a legal marriage;
its restraints were irksome and unpopular, and in course of time it
ceased to exist, leaving no equivalent protection of the stability of
family life. The later Roman marriage left the spouses comparatively
independent of each other. The distance between the two modes of
marriage may be estimated by the fact that, while under the former
the wife was one of the husband's immediate heirs, under the latter she
was called to the inheritance only after his kith and kin had been
exhausted, and only in preference to the treasury. It seems doubtful how
far she had, during the continuance of marriage, a legal right to
enforce aliment from her husband, although if he neglected her she had
the unsatisfactory remedy of an easy divorce. The law, in fact,
preferred to leave the parties to arrange their mutual rights and
obligations by private contracts. Hence the importance of the law of
settlements (_Dotes_). The _Dos_ and the _Donatio ante nuptias_ were
settlements by or on behalf of the husband or wife, during the
continuance of the marriage, and the law seems to have looked with some
jealousy on gifts made by one to the other in any less formal way, as
possibly tainted with undue influence. During the marriage the husband
had the administration of the property.
The _manus_ of the Roman law appears to be only one instance of an
institution common to all primitive societies. On the continent of
Europe after many centuries, during which local usages were brought
under the influence of principles derived from the Roman law, a theory
of marriage became established, the leading feature of which is the
_community of goods_ between husband and wife. Describing the principle
as it prevails in France, Story (_Conflict of Laws_, § 130) says: "This
community or nuptial partnership (in the absence of any special
contract) generally extends to all the movable property of the husband
and wife, and to the fruits, income and revenue thereof.... It extends
also to all immovable property of the husband and wife acquired during
the marriage, but not to such immovable property as either possessed at
the time of the marriage, or which came to them afterwards by title of
succession or by gift. The property thus acquired by this nuptial
partnership is liable to the debts of the parties existing at the time
of the marriage; to the debts contracted by the husband during the
community, or by the wife during the community with the consent of the
husband; and to debts contracted for the maintenance of the family....
The husband alone is entitled to administer the property of the
community, and he may alien, sell or mortgage it without the concurrence
of the wife." But he cannot dispose by will of more than his share of
the common property, nor can he part with it gratuitously _inter vivos_.
The community is dissolved by death (natural or civil), divorce,
separation of body or separation of property. On separation of body or
of property the wife is entitled to the full control of her movable
property, but cannot alien her immovable property, without her husband's
consent or legal authority. On the death of either party the property is
divided in equal moieties between the survivor and the heirs of the
deceased.
_Law of England._--The English common law as usual followed its own
course in dealing with this subject, and in no department were its rules
more entirely insular and independent. The text writers all assumed two
fundamental principles, which between them established a system of
rights totally unlike that just described. Husband and wife were said to
be one person in the eye of the law--_unica persona, quia caro una et
sanguis unus_. Hence a man could not grant or give anything to his wife,
because she was himself, and if there were any compacts between them
before marriage they were dissolved by the union of persons. Hence, too,
the old rule of law, now greatly modified, that husband and wife could
not be allowed to give evidence against each other, in any trial, civil
or criminal. The unity, however, was one-sided only; it was the wife who
was merged in the husband, not the husband in the wife. And when the
theory did not apply, the disabilities of "coverture" suspended the
active exercise of the wife's legal faculties. The old technical
phraseology described husband and wife as _baron_ and _feme_; the rights
of the husband were baronial rights. From one point of view the wife was
merged in the husband, from another she was as one of his vassals. A
curious example is the immunity of the wife in certain cases from
punishment for crime committed in the presence and on the presumed
coercion of the husband. "So great a favourite," says Blackstone, "is
the female sex of the laws of England."
The application of these principles with reference to the property of
the wife, and her capacity to contract, may now be briefly traced.
The _freehold property_ of the wife became vested in the husband and
herself during the coverture, and he had the management and the profits.
If the wife had been in actual possession at any time during the
marriage of an estate of inheritance, and if there had been a child of
the marriage capable of inheriting, then the husband became entitled on
his wife's death to hold the estate for his own life as tenant by the
_curtesy of England_ (_curialitas_).[1] Beyond this, however, the
husband's rights did not extend, and the wife's heir at last succeeded
to the inheritance. The wife could not part with her real estate without
the concurrence of the husband; and even so she must be examined apart
from her husband, to ascertain whether she freely and voluntarily
consented to the deed.
With regard to personal property, it passed absolutely at common law to
the husband. Specific things in the possession of the wife (_choses_ in
possession) became the property of the husband at once; things not in
possession, but due and recoverable from others (_choses_ in action),
might be recovered by the husband. A _chose_ in action not reduced into
actual possession, when the marriage was dissolved by death, reverted to
the wife if she was the survivor; if the husband survived he could
obtain possession by taking out letters of administration. A _chose_ in
action was to be distinguished from a specific thing which, although the
property of the wife, was for the time being in the hands of another. In
the latter case the property was in the wife, and passed at once to the
husband; in the former the wife had a mere _jus in personam_, which the
husband might enforce if he chose, but which was still capable of
reverting to the wife if the husband died without enforcing it.
The _chattels real_ of the wife (i.e., personal property, dependent on,
and partaking of, the nature of realty, such as leaseholds) passed to
the husband, subject to the wife's right of survivorship, unless barred
by the husband by some act done during his life. A disposition by will
did not bar the wife's interest; but any disposition _inter vivos_ by
the husband was valid and effective.
The courts of equity, however, greatly modified the rules of the common
law by the introduction of the wife's _separate estate_, i.e. property
settled to the wife for her separate use, independently of her husband.
The principle seems to have been originally admitted in a case of actual
separation, when a fund was given for the maintenance of the wife while
living apart from her husband. And the conditions under which separate
estate might be enjoyed had taken the Court of Chancery many generations
to develop. No particular form of words was necessary to create a
separate estate, and the intervention of trustees, though common, was
not necessary. A clear intention to deprive the husband of his common
law rights was sufficient to do so. In such a case a married woman was
entitled to deal with her property as if she was unmarried, although the
earlier decisions were in favour of requiring her binding engagements to
be in writing or under seal. But it was afterwards held that any
engagements, clearly made with reference to the separate estate, would
bind that estate, exactly as if the woman had been a _feme sole_.
Connected with the doctrine of separate use was the equitable
contrivance of _restraint on anticipation_ with which later legislation
has not interfered, whereby property might be so settled to the separate
use of a married woman that she could not, during coverture, alienate it
or anticipate the income. No such restraint is recognized in the ease of
a man or of a _feme sole_, and it depends entirely on the separate
estate; and the separate estate has its existence only during coverture,
so that a woman to whom such an estate is given may dispose of it so
long as she is unmarried, but becomes bound by the restraint as soon as
she is married. In yet another way the court of Chancery interfered to
protect the interests of married women. When a husband sought the
aid of that court to get possession of his wife's _choses_ in action, he
was required to make a provision for her and her children out of the
fund sought to be recovered. This is called the wife's _equity to a
settlement_, and is said to be based on the original maxim of Chancery
jurisprudence, that "he who seeks equity must do equity." Two other
property interests of minor importance are recognised. The wife's
_pin-money_ is a provision for the purchase of clothes and ornaments
suitable to her husband's station, but it is not an absolute gift to the
separate use of the wife; and a wife surviving her husband cannot claim
for more than one year's arrears of pin-money. _Paraphernalia_ are
jewels and other ornaments given to the wife by her husband for the
purpose of being worn by her, but not as her separate property. The
husband may dispose of them by act _inter vivos_ but not by will, unless
the will confers other benefits on the wife, in which case she must
elect between the will and the paraphernalia. She may also on the death
of the husband claim paraphernalia, provided all creditors have been
satisfied, her right being superior to that of any legatee.
The corresponding interest of the wife in the property of the husband is
much more meagre and illusory. Besides a general right to maintenance at
her husband's expense, she has at common law a right to dower (q.v.) in
her husband's lands, and to a _pars rationabilis_ (third) of his
personal estate, if he dies intestate. The former, which originally was
a solid provision for widows, has by the ingenuity of conveyancers, as
well as by positive enactment, been reduced to very slender dimensions.
It may be destroyed by a mere declaration to that effect on the part of
the husband, as well as by his conveyance of the land or by his will.
The common practice of regulating the rights of husband, wife and
children by marriage settlements obviates the hardships of the common
law--at least for the women of the wealthier classes. The legislature by
the Married Women's Property Acts of 1870, 1874, 1882 (which repealed
and consolidated the acts of 1870 and 1874), 1893 and 1907 introduced
very considerable changes. The chief provisions of the Married Women's
Property Act 1882, which enormously improved the position of women
unprotected by marriage settlement, are, shortly, that a married woman
is capable of acquiring, holding and disposing of by will or otherwise,
any real and personal property, in the same manner as if she were a
_feme sole_, without the intervention of any trustee. The property of a
woman married after the beginning of the act, whether belonging to her
at the time of marriage or acquired after marriage, is held by her as a
_feme sole_. The same is the case with property acquired after the
beginning of the act by a woman married before the act. After marriage a
woman remains liable for antenuptial debts and liabilities, and as
between her and her husband, in the absence of contract to the contrary,
her separate property is deemed primarily liable. The husband is only
liable to the extent of property acquired from or through his wife. The
act also contained provisions as to stock, investment, insurance,
evidence and other matters. The effect of the act was to render obsolete
the law as to what created a separate use or a reduction into possession
of _choses_ in action, as to equity to a settlement, as to fraud on the
husband's marital rights, and as to the inability of one of two married
persons to give a gift to the other. Also, in the case of a gift to a
husband and wife in terms which would make them joint tenants if
unmarried, they no longer take as one person but as two. The act
contained a special saving of existing and future settlements; a
settlement being still necessary where it is desired to secure only the
enjoyment of the income to the wife and to provide for children. The act
by itself would enable the wife, without regard to family claims,
instantly to part with the whole of any property which might come to
her. Restraint on anticipation was preserved by the act, subject to the
liability of such property for antenuptial debts, and to the power given
by the Conveyancing Act 1881 to bind a married woman's interest
notwithstanding a clause of restraint. The Married Women's Property Act
of 1893 repealed two clauses in the act of 1882, the exact bearing of
which had been a matter of controversy. It provided specifically that
every contract thereinafter entered into by a married woman, otherwise
than as an agent, should be deemed to be a contract entered into by her
with respect to and be binding upon her separate property, whether she
was or was not in fact possessed of or entitled to any separate property
at the time when she entered into such contract, that it should bind all
separate property which she might at any time or thereafter be possessed
of or entitled to, and that it should be enforceable by process of law
against all property which she might thereafter, while discovert, be
possessed of or entitled to. The act of 1907 enabled a married woman,
without her husband, to dispose of or join in disposing of, real or
personal property held by her solely or jointly as trustee or personal
representative, in like manner as if she were a _feme sole_. It also
provided that a settlement or agreement for settlement whether before or
after marriage, respecting the property of the woman, should not be
valid unless executed by her if she was of full age or confirmed by her
after she attained full age. The Married Women's Property Act 1908
removed a curious anomaly by enacting that a married woman having
separate property should be equally liable with single women and widows
for the maintenance of parents who are in receipt of poor relief.
The British colonies generally have adopted the principles of the
English acts of 1882 and 1893.
_Law of Scotland._--The law of Scotland differs less from English law
than the use of a very different terminology would lead us to suppose.
The phrase _communio bonorum_ has been employed to express the
interest which the spouses have in the _movable_ property of both, but
its use has been severely censured as essentially inaccurate and
misleading. It has been contended that there was no real community of
goods, and no partnership or societas between the spouses. The wife's
movable property, with certain exceptions, and subject to special
agreements, became as absolutely the property of the husband as it did
in English law. The notion of a _communio_ was, however, favoured by
the peculiar rights of the wife and children on the dissolution of the
marriage. Previous to the Intestate Movable Succession (Scotland) Act
1855 the law stood as follows. The fund formed by the movable property
of both spouses may be dealt with by the husband as he pleases during
life; it is increased by his acquisitions and diminished by his debts.
The respective shares contributed by husband and wife return on the
dissolution of the marriage to them or their representatives if the
marriage be dissolved within a year and a day, and without a living
child. Otherwise the division is into two or three shares, according
as children are existing or not at the dissolution of the marriage. On
the death of the husband, his children take one-third (called
_legitim_), the widow takes one-third (_jus relictae_), and the
remaining one-third (the _dead part_) goes according to his will or to
his next of kin. If there be no children, the _jus relictae_ and the
dead's part are each one-half. If the wife die before the husband, her
representatives, whether children or not, are creditors for the value
of her share. The statute above-mentioned, however, enacts that "where
a wife shall predecease her husband, the next of kin, executors or
other representatives of such wife, whether testate or intestate,
shall have no right to any share of the goods in communion; nor shall
any legacy or bequest or testamentary disposition thereof by such
wife, affect or attach to the said goods or any portion thereof." It
also abolishes the rule by which the shares revert if the marriage
does not subsist for a year and a day. Several later acts apply to
Scotland some of the principles of the English Married Women's
Property Acts. These are the Married Women's Property (Scotland) Act
1877, which protects the earnings, &c., of wives, and limits the
husband's liability for antenuptial debts of the wife, the Married
Women's Policies of Assurance (Scotland) Act 1880, which enables a
woman to contract for a policy of assurance for her separate use, and
the Married Women's Property (Scotland) Act 1881, which abolished the
_jus mariti_.
A wife's _heritable_ property does not pass to the husband on
marriage, but he acquires a right to the administration and profits.
His courtesy, as in English law, is also recognized. On the other
hand, a widow has a _terce_ or life-rent of a third part of the
husband's heritable estate, unless she has accepted a conventional
provision.
_Continental Europe._--Since 1882 English legislation in the matter of
married women's property has progressed from perhaps the most backward
to the foremost place in Europe. By a curious contrast, the only two
European countries where, in the absence of a settlement to the
contrary, independence of the wife's property was recognized, were
Russia and Italy. But there is now a marked tendency towards
contractual emancipation. Sweden adopted a law on this subject in
1874, Denmark in 1880, Norway in 1888. Germany followed, the Civil
Code which came into operation in 1900 (Art. 1367) providing that the
wife's wages or earnings shall form part of her _Vorbehaltsgut_ or
separate property, which a previous article (1365) placed beyond
the husband's control. As regards property accruing to the wife in
Germany by succession, will or gift _inter vivos_, it is only separate
property where the donor has deliberately stipulated exclusion of the
husband's right.
In France it seemed as if the system of community of property was
ingrained in the institutions of the country. But a law of 1907 has
brought France into line with other countries. This law gives a
married woman sole control over earnings from her personal work and
savings therefrom. She can with such money acquire personalty or
realty, over the former of which she has absolute control. But if she
abuses her rights by squandering her money or administering her
property badly or imprudently the husband may apply to the court to
have her freedom restricted.
_American Law._--In the United States, the revolt against the common
law theory of husband and wife was carried farther than in England,
and legislation early tended in the direction of absolute equality
between the sexes. Each state has, however, taken its own way and
selected its own time for introducing modifications of the existing
law, so that the legislation on this subject is now exceedingly
complicated and difficult. James Schouler (_Law of Domestic
Relations_) gives an account of the general result in the different
states to which reference may be made. The peculiar system of
Homestead Laws in many of the states (see HOMESTEAD and EXEMPTION
LAWS) constitutes an inalienable provision for the wife and family of
the householder.