1911 Encyclopædia Britannica/Husband and Wife

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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, 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.

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