CW: Yes, I am going to talk about patriarchy again. Any delicate little flowers liable to stamp their feet/roots at that should look away now.
While my mind is on coverture, let me add this – a bit of thinking about the way in which patriarchal ideas continue to exert influence long after the point at which it is generally supposed that they were abandoned. Despite assumptions that the doctrine of coverture was killed off with the changes brought in by late 19th C women’s property legislation in particular, the idea of coverture continued to dribble its poison into the law and life of the twentieth century, and beyond.
With my modern law lecturer hat on, I want to confirm that today’s law students, if they follow their reading lists, will encounter the idea. There are statements about the doctrine being ‘defunct’,[i] but though much of its former substance is gone, coverture has never been abolished in explicit terms in England and Wales. And that matters.
There are some surviving statutory provisions which refer to it. The one I come across every year when I am preparing my easements teaching in Land Law is the Prescription Act 1832 s.7. It is true that this statute is rarely used, but it remains grating and insulting to see the continued promotion of this language in an official source. It would probably also surprise people to learn that it is still felt that there is a need to define ‘coverture’ in the glossary of very recent current government guidance on matters of tax. There is also one attempt to use a (thinly disguised) coverture argument which I come across every year in Land Law, in the leading case of Williams & Glyn’s Bank v Boland. There was an attempt to argue that a wife’s presence in a house was not to be taken as ‘actual occupation’, but as a ‘shadow’ of the occupation of her husband. So now he is some solid object interposed between her and the sun (the law?), rather than a smothering blanket (well, that is how I have always visualised coverture), but Lord Wilberforce made the connection between this argument and the coverture-as-unity idea.[ii] More modern legal arguments in England and Wales do not seem to approach coverture reasoning quite so closely, but it is interesting to see coverture being brought up in a slightly different way, as ‘historical background’ to modern decisions, and perhaps with an undertone of the present elite congratulating itself by reference to (a simplified view of) the past. Thus, in A NHS Trust v X [2021] EWHC 65 (Fam), in the Family Division of the High Court, in a case which was not anything to do with marriage and its effects, but was about whether a Jehovah’s Witness child could refuse a blood transfusion, a judge, at 56 nevertheless shared with his audience the statement that ‘Once upon a time the [feme covert] …, by reason of her coverture, was treated as lacking the capacity she had had as a spinster and only recovered as a widow or on divorce (feme sole).’ This, it seems to me, shows a lasting fascination with the idea of coverture, and also suggests that modern lawyers are not so far away from medieval lawyers, who, if the reports which made it into the Year Books are concerned, certainly enjoyed talking about coverture, even in cases in which it was not strictly relevant.
And so to the usual question – so what? Well, in my view, the fact that there are these lingering shadows of the diminishing and discriminatory doctrine of coverture still to be seen should spur legal historians on to explore its history, to show its continuities and discontinuities, to resist easy narratives of progress: we are fooling ourselves if we think that there is such a thing as a ‘clean break’ from the patriarchal (yes, said it again!) institutions of the past.
GS
1/10/2023
[i] See, e.g., Armstrong v Onyearu and another [2017] EWCA Civ 268; [2018] Ch. 137, argument of Simon Passfield.
[ii] [1981] A.C. 487.
Image – a shadow, probably not in actual occupation. Photo by Rene Böhmer on Unsplash