Whilst family law has come on leaps and bounds since 1882 in terms of gender equality, some legislation from 1882 remain in force and can affect both women and men, even before they tie the knot. On International Women’s Day 2024, Charlie Geyton, solicitor in Winckworth Sherwood’s Family Team, looked back at the impact of one of the biggest steps forward in recognising women’s rights on divorce: The Married Women’s Property Act 1882 (MWPA) and its impact on modern couples.
Historical context
In the 19th century, married women in many parts of the world had limited legal rights, particularly concerning property ownership. In the UK, a woman was considered her husband’s property so any assets or earnings she had automatically became her husband’s, leaving her financially vulnerable and dependent. In common law, a wife was often referred to as ‘feme covert’, meaning she was placed under the protection and influence of her husband.
Wives were unable to hold their own property, sue or be sued, write a will (or inherit land in the same way that a man could) or even be recognised as a separate legal person. It was commonplace to consider a woman who had been engaged and subsequently left to have a lower value and a lower social position in society. These legal and societal norms perpetuated inequality and hindered women’s autonomy.
As the women’s suffrage movement was gaining momentum throughout the 19th century, prominent figures formed the Kensington Society; a women’s group where members could campaign about pertinent issues such as education, enfranchisement and property ownership. They pushed for legislation that would recognise a married woman’s right to own, buy and sell her own property, independently of her husband, whether this was purchased before or during the marriage. After years of political lobbying, the MWPA received Royal assent on 18 August 1882.
The MWPA 1882 (and the 7 other Married Women Property Acts that were enacted between 1870 and 1964) enabled married women to enter into contracts, sue and be sued, inherit up to £200, become liable to support her children, and manage their own finances. It also provided safeguards against husbands’ debts and creditors, ensuring that women’s property remained protected. Moreover, it laid the foundation for subsequent legal reforms that expanded women’s rights throughout family law.
The MWPA revolutionised the legal status of married women, empowering them to assert control over their financial affairs and their rights as individuals. It played a crucial role in challenging societal norms and fostering greater gender equality. The Act’s legacy reverberated far beyond the shores of the United Kingdom, inspiring similar legislative reforms across the commonwealth and worldwide.
The MWPA today – extension of rights for engaged couples
Although this piece of legislation was ground-breaking at the time, for most people the rights it grants today are second nature and perhaps taken for granted. Section 17 of the MWPA (as amended) permitted the court to make an order as to the property of either the husband or wife of any of their property, on application to the court. Following its enactment, divorcing women used this route to access financial provision regularly. Since the enactment of the Matrimonial Causes Act 1973 that sets out the modern divorce system, the MWPA is understandably used infrequently.
The Act still has relevance today as the right to make a claim on your spouse’s property was extended to engaged couples following the enactment of the Law Reform (Miscellaneous Provisions) Act 1970 (LRMPA) and the Matrimonial Proceedings and Property Act 1970. Engaged couples are specifically not mentioned or granted rights through the Matrimonial Causes Act 1973, so this remains the only legislation that grants rights specifically for engaged couples.
These Acts provided that where an engagement is terminated, either party could have a claim against any property in which their partner has a beneficial interest in while they were engaged. The Acts also broadened the scope so that either party could bring these claims, not just granting rights for women specifically.
The 1970 Acts provide that where a couple gets engaged and one party makes a “substantial financial contribution” to the property of the other party during the engagement, then the engagement is called off, they could have a claim in respect of their beneficial interest in that property. The meaning of the word “substantial” has not received extensive judicial debate in this context so its definition is unclear. But the requirement for the contribution to be financial means it has to be a monetary provision to the property itself. So, in a case where one party has provided significant funds to the wedding, this is unlikely to be valid for a claim under this legislation.
The LRMPA also expanded the rights of engaged couples where it specified that that engagement rings are “presumed to be an absolute gift”, unless there is evidence that proves otherwise. It is uncommon for engagement rings to be given with a caveat that they are expected to be returned on the breakdown of the engagement, so usually they will be treated as the property of the person who received it.
Conclusion
While family law has evolved since (and thanks to) the MWPA, its impact persists, not only in forging the rights of modern women, but also having unwittingly assisted in providing rights to engaged couples. The current legislation we have ensures individuals making significant financial contributions during an engagement have legal claims to their ex’s property if the engagement ends. But given the lack of judicial discussion of this right in recent years, it could be that people are not concerned with using their position as a fiancé(e) to bolster their legal rights.
With the Matrimonial Causes Act 1973 currently being under review by the Law Commission, it remains to be seen whether the rights of engaged couples will be on the roster for policy makers or if this little know right will fall into obsolescence. It seems the latter will be more likely, as these rights were not considered in the first writing of the Act, which is now over 50 years old.