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Coverture in regency England

  • Writer: Heather Moll
    Heather Moll
  • Apr 27
  • 4 min read

Prior to marriage, a woman in regency England could execute a will, enter into contracts, sue or be sued, and sell or give away her personal property. Once she married, however, she lost those rights as an individual due to coverture.


Originating from a French word meaning “covering,” coverture meant a married woman’s legal existence merged with that of her husband. Upon marriage, she had no independent legal existence of her own. A married couple was one economic and legal unit, and that unit was the husband.


Blackstone’s Commentaries on the Laws of England describe the principle of coverture this way:

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 every thing;


Prior to the Divorce Act of 1857, divorce were nearly impossible under English law. Legal separation could be obtained, but only on the grounds of adultery or cruelty, and the costs of filing were high. Where the wife had committed adultery, a full divorce could be obtained by an Act of Parliament if the husband sued the guilty party, and that was costly. Annulments were also rarely granted. (See this blog post for more details on annulments.)


So marriage was essentially for life, and a woman no longer legally existed while she was married. Great.


A man can’t give anything to his wife, because that assumes she’s a separate entity. He controls any rent income she has, any personal property, and he can only bequeath things to her in his will, which is enacted upon his death. It was not until the Married Women’s Property Act of 1870 that married women in the UK could even be the legal owners of the money they earned and to inherit property themselves.


Even more appalling, a married woman didn’t have rights to her own child.


English fathers had absolute rights to the custody of their children. All children of the marriage had to remain with the husband, and the mother would not necessarily become their guardian in the event of the father’s death, since the husband had the right to name someone else as their guardian. Paternal rights were absolute under English law until an 1839 statute created certain maternal custody rights, but it was still a long road.


If a mother gained custody of her child, it was never from the premise that she had a right to her child, but rather that the father had lost his right. A mother only had the right to her child when no other guardian existed to supersede her. The father and the father’s appointed guardian were the ones with enforceable custody rights, never the mother.


There were instances where a father might have appointed a man to be legal guardian and someone else named to actually cared for the child, like its own mother. The mother had to be given custodianship, but typically a male relative would have guardianship to make decisions for the child. If the father’s will didn’t state who it was to be guardian and custodian, the choice fell to the Court of Chancery, but the court would only be involved in the case if the child had property and money.


Rather than defaulting to the mother at the father’s death, the common law said the closest male relative who could not inherit from the child should be guardian. If the money and land came from the father, then a maternal relative would be chosen as a guardian. The court was concerned not as concerned about the welfare of the child, but about a child being coerced out of its inheritance by a guardian or through marriage.


In Pride and Prejudice, Darcy is over 21 when his father dies and can be sole guardian to his underage sister—and her thirty thousand pounds—but another guardian is named alongside him who can’t inherit from Georgiana, her cousin on her mother’s side.


In Without Undue Pride, Elizabeth Fitzwilliam’s deceased husband left no will to lay plain who was to be guardian of his child, and his untrustworthy older brother Lord Milton is determined to take the unborn child from Elizabeth. Only fathers had the right to name guardians in their wills. This guardian would have complete control over them—like where they lived, how they were educated—until the child turned twenty-one, even if the child married before then.


Given the dubious interest Milton has in the child, Elizabeth is desperate to find a will that proves her deceased husband wanted her to have custody of their child.


In March 1776, Abigail Adams discussed natural rights of women in a letter with her husband, future president John Adams:

In the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.

She was asking for relief from coverture as the future United States was framing its laws, and her husband’s reply was, “As to your extraordinary Code of Laws, I cannot but laugh.” Adams thought restrictive systems against women like coverture were only a theory, and that men did not actually exercise the full legal power they had over women.


While we like to think our heroes, historical and fictional, were never tyrants to their wives, but married women were oppressed. Thankfully, at least in fiction like Without Undue Pride, our hero and heroine marry on more equal footing than was typical for women of the time.

 

Sarah Abramowicz. English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Parental Custody, 99 Colum. L. Rev. 1344 (1999). http://digitalcommons.wayne.edu/lawfrp/37

Gundersen, Joan R., and Gwen Victor Gampel. “Married Women’s Legal Status in Eighteenth-Century New York and Virginia.” The William and Mary Quarterly 39, no. 1 (1982): 114–34. https://doi.org/10.2307/1923419.

Blackstone, William (1769). “Of husband and wife”. Commentaries on the Laws of England (1765–1769). Lonang Institute. https://web.archive.org/web/20141013224551/http:/www.lonang.com/exlibris/blackstone/bla-115.htm

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