‘Wedded to Property’ – How Property influences Understandings of Marriage
Marriage has always been wedded to property. This relationship has been explored extensively by legal historians who have traced the dismantling of the unity of person doctrine and the recognition of separate property via the Married Women’s Property Act 1882. That conversation endures to the present day following the creation of equitable redistribution powers now contained in the Matrimonial Causes Act 1973. In many ways these often-celebratory accounts identify the gradual removal of legal impediments experienced by wives motivated by a societal drive towards greater gender equality. More precisely, they illustrate how the law confronted, and later addressed, the financial consequences of divorce. But the earlier question as to the meaning and nature of marriage is routinely overlooked, perhaps deliberately given the difficulties of definition or simply because such definition is deemed unnecessary owing to universal understandings of marriage in society.
With reference to litigation brought using section 17 of the Married Women’s Property Act 1882, this paper will uncover what these early cases tell us about the meaning of marriage. Prior to its interpretation as a purely procedural provision, section 17 became fertile ground for the experimentation of ideas as to property-holding and power-dynamics within marriage. The purpose of this provision was to facilitate the realisation of separate property yet, somewhat ironically, it was ultimately deployed by certain members of the judiciary in an expansive manner to enable the fruits of the marriage partnership to be shared. This paper analyses that creativity and while courts focussed on the consequences of divorce in this case law it argues that multiple and often inconsistent understandings of marriage can be identified. The paper concludes by reflecting on the legacy of section 17 and whether we are any closer today to a more unified understanding of marriage.
Dr Andy Hayward is an Associate Professor at Durham Law School. His research explores from both domestic and comparative law perspectives the legal regulation of adult relationships, in particular, marriage, civil partnership and cohabitation.