Married Women Having no Capacity to Contract

Published 09 Dec 2016

The right and issues surrounding women have long been a pursuit to reach equality and freedom. For several years, the role of women has long been a topic for debate towards what they can do and what responsibilities they should own. It has long been in existence. As society gears towards the new millennium, with new ideologies and principle, the state of women, her rights and responsibilities, is tagged as a continuous pursuit. In this paper, we will evaluate the treatment of laws and legality issues towards women. Historically, women are not garnered with the right to execute contract. In terms of equality in legal terms, the married women do not possess the rights to it anymore given the feudal principles that surround a person being a married woman.

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In the past, single women have the right and capacity to make contracts, holds property, or sued and be sued. But married women have dissolved rights to these because of the religious theory that marriage made a man and a woman one, and this equates a general legal disability for women, the law even disregard married women as legal. As a married woman, the husband now is supposed to be the guardian, provider and protector of the woman. In consequence, he becomes the lord and master according to both chancery and common law courts.(Freed) The power of husbands is asserted within the authority of the husbands to govern and have the influence over the live of the married women.

At common law, the married woman can not hold contract between her husband, and any other person. The law permits her to bind her properties and equitable assets, but these do not or are bounded to her personally. At common law again, the married woman can not sue or be sued except in cases where the husband is involved. However, in cases wherein equitable estates are involved, the wife alone is sued for equity. This constitutes the merger-of-identity theory. (Freed)

The marriage between a man and a woman also entitles the husband to own the married woman’s personality and possessions, except for jewelries and clothing, when the woman dies. This also is effective towards the personality the woman had become in the marriage. The husband has the power to make choices in actions and he can enforce them willfully. If the husband fails to take possession, the married woman can take the necessary actions she wants. The merger of identity theory also constitutes the idea that the husband has unilateral duty to support his wife and family. The husband is also entitled to his return of profits and investment. Thus, the husband could convey his interest in his wife’s property but the wife would then need the consent of his husband to convey her own interest.(Eisenberg)

A married woman’s lack of legal status was allied by Chancery to evolve in as a protection for a married woman’s personality and profits and rents. This was done by creating an exclusive equity of estate for the woman. Encompassed as a trust, the woman now has the ownership of a separate property in equity belonging and exclusive to her, whether it may be a tangible or intangible property.(Eisenberg) But this trust is limited only through a conveyance by deed or will in which she can make contracts, although enforceable against her personally but might be enforced against her separate estate.

During the mid 19th century, the Married Women’s property Acts was conceived as a response to the harsh feudalistic principles of the common law. This Act governs that the wives now has capacity to leave and dispose their own property, to contract, sue or be sued. New York in 1848 is the first state to enact the Married Women’s Acts. The Acts became the first attempt to emancipate wives from the feudalistic concepts and patriarchal society women thrive in. another law, the Domestic Relations Law entitled property of Married Women provide married women to their rights to own and entitled their property as theirs if the property was their before they got married. The next provision of this law initiates married women the provision by which they have right to own, manage and dispose their own property was their right to economic independence of their properties. But this section does not strip the husbands of their common right law as a tenant and as a consummate if in case his wife dies. Under the same provision, the wife maintains her right to personal property she brought to the marriage and acquired of her own funds, unless they were gifts to the husband. (Freed)

The Married Women’s property Act of 1848 now became the General Obligations Law that conveys that married women should have the right to legalities as if she was unmarried, including making contracts and respect to property, acquisition, use and enjoyments of what is hers. Compared to the common law which restrict married women to contracts and her contracts being not honored in the courts, these provisions now have the same power to contract as a single woman.

Needless to say, all statutes disabling married women to rights to make contracts, own property and other such rights is answered by the pursuit to elevate the rights and role of women. Any violation of such right by a woman’s husband or anybody else is unconstitutional. The provisions of the laws and acts that concern the rights of married women to be treated as a single woman when in terms of their properties and right to contract serves as the legal basis in which acts that violates them are unconstitutional and women can express their desire to do action on it.

As a stand, society have this impression that women are now garnered with equality the same with men. But that is not the case. As mentioned, the feudalistic concepts and the influential patriarchal society the women thrives in is a major factor why women still have insufficient rights and freedom. Although there are already laws and acts protecting rights of women, some states do not agree with them and as part of their right to impose their common laws, has continued the inequality shown towards women. A single woman even has the slight advantage over married women because married women are bounded by the contract of marriage and the stance of their husbands.

But as a stand, I would like to address that inequality between genders still exists. The laws and acts provided by several states are not sufficient to give married women, and in general women, their own rights and freedom as members of the society. Women are seen as an inactive participant in the process of change within a society but that is not the case. The role of women in the society, especially married women who raise family, is still being undermined in a society which promised freedom for all and equality of mankind. The fact that married women have the provisions protecting them, there is more changes to be look upon, and improvements that can enhance the welfare and stand of women in the society.


  • Eisenberg, B., Ruthsdotter, M. “Living the Legacy: The Women’s Rights Movement 1848 – 1998”. Santa Rosa, CA, 1998. The National Women’s History project. March 8 2007.
  • Freed, D., Brandes, J. and Weidman, C. “Law and the Family: Married Women Rights.” New York Law Journal (1991).
  • Anonymous. “Married Women’s Act of 1957”. March 8 2007. .
  • WpL. “The Women’s Family Code”. 2007. Women’s Learning partnership. March 8 2007. <>.
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