Last week, I received an email from a reader highlighting situations where married women could not make decisions without their husbands, and asking whether a woman becomes the charge of her husband upon marriage. We are in the 21st Century, but some customs and laws of centuries past continue to linger and define modern laws and policies. One of such is the Common Law Doctrine of Coverture.
Many common law rules especially those concerning the family have their root in religion. In Genesis chapter 3, when God confronted Adam and Eve for eating the forbidden fruit, the consequence for women in verse 16 was, ‘Your desire shall be for your husband, and he shall rule over you.’ That, in my opinion, is the underlying rationale for the doctrine of coverture. By the doctrine of coverture, upon marriage, a woman lost her legal personality. Marriage represented a legal merger of the wife’s existence into that of her husband. There is a presumed control exercised over the wife by the husband and everyone respects it. The woman upon marriage changed status from being a feme sole to being a feme covert.
In a case from the 17th Century, quoting Sir Thomas Smith, Justice Hyde had this to say: ‘”The naturalest and first conjunction of two towards the making a further society of continuance, is of the husband and wife, each having care of the family: the man to get, to travel abroad, and to defend; the wife to save, to stay at home, and to distribute that which is got, for the nurture of the children and family; which to maintain, God has given the man greater wit, better strength, better courage, to compel the woman to obey, by reason or force; and to the woman, beauty, fair countenance, and sweet words, to make the man obey her again for love. Thus each obeyeth, and commandeth the other; and they two together rule the house, so long as they remain in one.” I wish, with all my heart, that the women of this age would learn thus to obey, and thus to command their husbands: so will they want for nothing that is fit, and these kind of flesh-flies shall not suck or devour their husbands’ estates by illegal tricks.’Hyde J., Manby v Scott (1600)
The expectation was that the wife would submit to her husband, and the husband would be her cover, taking care of her and providing for the needs of the family.
Over the centuries, the doctrine evolved. While the wife was to submit to her husband, there were provisos to this submission. James Schouler, in his Treatise on the Law of the Domestic Relations; Embracing Husband and Wife, Parent and Child, Guardian and Ward, Infancy, and Master and Servant (1874) stated:
‘It is for the wife to love, honour, and obey: it is for the husband to, love, cherish, and protect. The husband is bound to furnish his wife with a suitable home; to provide, according to his means and conditions of life, for her maintenance and support; to defend her from personal insult and wrong; to be kind to her; to see that the offspring of their union are brought up with tenderness and care; and generally to conduct himself, not according to the strict letter of the matrimonial contract, but in its spirit. So long as he does this, his authority is acknowledged at the common law, and if the wife’s wishes and interests clash with his own, she must yield.’
While the wife was still expected to yield to the will of her husband, her yielding was based on the fulfilment of certain expectations of the husband to his wife.
One of the major effects of the doctrine of coverture was the married woman’s disability to contract. Since the wife was presumed to act under the dominion of her husband, having no independent will as a married woman, with few exceptions such as where the husband was not in the jurisdiction or not available for a long period of time, she had no power to bind herself by contract. The married woman’s disability to contract was even worse than an infant’s. Whereas a contract entered into with an infant is voidable, meaning that the infant can accept or reject the contract when he comes of age, a contract entered into with a married woman was completely void.
A contract entered into with a married woman had no force and could not be sued upon even after the marriage ended because it was never a valid contract to begin with. It did not matter whether the husband consented to the contract or not. An unmarried woman, a feme sole, was in a better position because she did not have the disability of contract. A feme sole could contract, hold property, sue and be sued, just like a man. It therefore means that the married woman’s disability to contract was not based on her gender but on the status of marriage. A married woman could not make a will; any personal property belonging to the woman before the marriage was under the control of the husband.
What some other common law jurisdictions have done over the centuries is to take positive steps to neutralise the doctrine of coverture by enacting laws that expressly give married women the right to contract, own property and carry on certain acts that were prohibited by the doctrine. For instance, the Married Women’s Property Act of 1882 which allowed married women in England (and Wales) and Ireland to own and control property in their own right, dispose of property through a will or conveyance, and recognised the separate legal identities of husband and wife. Other colonies like Australia and America followed suit and enacted similar laws.
Although section 42 of the 1999 Constitution prohibits discrimination based on sex in the application of any law in force in Nigeria or any executive or administrative action of the government, the same Constitution does not provide women to confer citizenship on their foreign husbands, the same way that a man can (section 26(2)). In practice, what we find is that in many spheres of life, married women in Nigeria are still treated with the disabilities of a feme covert with no legal personality of her own. It is the reason why a wife requires the consent of her husband to apply for a Nigerian passport for herself or her children but the same requirement is not on the husband. Even where there are no express laws limiting the legal capacity of married women, you find that in practice a married woman is limited by discriminatory administrative policies. There is no law higher than the Constitution but it seems that more decisive action must be taken to drag us out of the 17th Century.