Conflicts of Interest: The Evolution of Married Women's Property Rights in Nineteenth Century New Hampshire
In the early 1900s, married women in New Hampshire had the right to hold, derive benefits from, and dispose of property held through trusts or the provision of an ante-nuptial contract. This was only beneficial to wealthier women--the only women with property worth protecting and the resources to protect it. The average woman could not protect herself or her family if her husband deserted her or was irresponsible with money, and any money she earned was not her property. This paper examines the efforts of the New Hampshire legislature and courts to protect both women and creditors while preserving the husband's central role in the family. As the law developed, married women were able to use the restrictions on their property rights to avoid liability, leading the legislature and courts to expand women's property rights in order to protect creditors.
Wives needed a means to support and protect themselves when their husbands failed to provide for them. However, while the courts and legislature were willing to expand property rights for married women who would otherwise be destitute, they were not willing to do so for women not in that situation. In 1840, the legislature addressed the issue of married women's property rights for the first time, providing abandoned women with the right to hold and manage their own property, and enabling creditors to satisfy an absent husband's debt out of his wife's estate. The court provided further protection, establishing that a husband's creditors could not reach his wife's property unless the husband had reduced the property to his possession. The court also expanded women's rights in the area of contract law by upholding a contract made by a married woman, finding that although the contract was void when made, once the woman performed her part of the deal, the husband and wife could legally enforce the contract.
The legislature further addressed married women's property rights in 1845 and 1846. It was not possible to expand women's liability without enlarging their rights, and courts read these acts as intending to expand protections for women, not increase their property rights. The choice to value constraint on women's rights over protection of creditors became difficult to maintain as more women entered the marketplace and the risk and burden on creditors became too great. Over the next few decades, the legislature passed several additional statutes intended to protect women and the interests of creditors. The court resisted expanding married women's property rights more than necessary, desiring that husbands retain the central position. Often, the court was only willing to protect a married woman's property when it felt that the wife and her property deserved protection, finding that a wife's earnings belonged to her husband. The legislature responded to the court's hesitancy with legislation specifying that married women could control their earnings. At this point, disposition of earnings was more important than that of estates to most New Hampshire families. Eventually, the court and legislature were also forced to expand the rights of married women to enter into contracts. Married women were using the law of coverture to escape their contractual obligations. At first the court favored coverture, but as women continued to abuse the law to their advantage, the court began to enforce their contracts. The interests of creditors prevailed, as did the interest of women in acquiring the right to hold property.
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