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| 'The Emperor Napoleon in his study at the Tuileries' by Jacques-Louis David, showing the Code Napoléon National Gallery of Art, Washington DC Public domain |
In pre-Revolutionary western Europe there were two systems of law. In Italy, Spain and France south of the Loire, Roman law prevailed. North-western Europe, including northern France, England and the Netherlands was an area of customary law.
But whatever the different systems, a person’s legal status depended on gender, and women were defined in relation to men as wives, daughters or mothers. The male heads of their families were responsible for their conduct. The law recognised that men had the right to inflict ‘reasonable chastisement’ on their wives. In Roman law a woman taken in adultery by her husband could be killed on the spot.
Property
In most of western Europe property was transmitted through male primogeniture. In some systems, daughters could inherit where there were no sons, but more generally, daughters did not inherit landed estates and instead were provided with dowries. When a woman married, her property was handed over to her husband.Marriage and divorce
The Catholic Church insisted that marriage was indissoluble, though annulment could provide a way out. The Church also allowed separation ‘from bed and board’, though the couple were not then free to remarry.The Calvinist Church allowed for divorce under certain circumstances, almost invariably the adultery of the wife. In England an aristocratic husband could obtain a divorce by act of Parliament.
Divorce and the French Revolution
The French Revolution saw a programme of secularisation designed to end the privileges of the Catholic Church. One of the last acts of the Legislative Assembly was its divorce law of 20 September 1792. For the first time divorce was allowed.Marriage was now seen not as a sacrament but a secular covenant.
A couple could divorce easily and quickly for cruelty and insanity, though adultery was not named in the list of marital offences. Couples could also have a no-fault divorce based simply on incompatibility, after a six-month waiting period. Women had the same divorce rights as men.
In the immediate aftermath there were more divorces than marriages in Paris and the majority were initiated by women.
Napoleon
In 1799 General Bonaparte came to power in a coup d’état that made him First Consul. He inherited the legal system of the ancient regime, a mass of feudal and royal laws now in need of updating.He set out to modernise the laws and to introduce a single body of law throughout France. The code was completed in 1801 and finally published in 1804.
The Code Napoléon re-organized civil, criminal and commercial law. The civil code regulated the ownership of property. It abolished most distinctions of birth but enshrined the husband as head of the family, returning in that respect to the traditionalist values of the ancien régime. Divorce was now made more difficult than it had been during the Revolution, especially for women. A man could divorce his wife for adultery alone, but a woman could only divorce her adulterous husband if he brought his mistress into the house. However, women continued to outnumber men as divorce petitioners.
In 1814 the monarchy was restored. In the period of Catholic reaction that followed, divorce was abolished in 1816. In spite of numerous efforts to reinstate the Napoleonic laws, divorce was not finally allowed until 1884.
See here for more information on divorce in France in the nineteenth century.
England: a different legal system
England had no comparable legal code. The legal status of English women was defined not by code but by the centuries-old common law, a system built up by custom and precedent as well as statute.Under the common law English women took their husbands’ names – a practice that was not found in Scotland or the rest of Europe.
But the common law also gave some women rights not available on the Continent.
Contrary to popular belief, English common law never stated that wives were the property of their husbands - even if many men might have acted as if this were the case! A husband could not legally buy or sell a wife. Wife-sales happened from time to time but they were never legal and were often simply an unofficial, mutually-agreed divorce.
The 'feme sole' and the 'feme covert'
Before 1882 English common law made a distinction between married and unmarried women. An unmarried woman or a widow was a 'feme sole' with the right to own property and make contracts in her own name. She had the same legal freedoms as a man. A widow had the right to a third of her husband's estate.However a married woman was defined as a 'feme covert'. She could not own separate property or enter into contracts, and if she had any debts her husband was answerable for them.
The eighteenth-century lawyer, William Blackstone wrote in his Commentaries on the Laws of England:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.
By the eighteenth century a properties woman was granted a 'jointure' when she married. This was usually a sum of money, secured by settlements that over-rode the common law right to a third of the property. It was held by trustees, but she was also allowed her own spending money - her ‘pin-money’.
Child custody
The case of Caroline Norton highlighted the legal disabilities women suffered in the family. |
| Caroline Norton, by George Hayter Public domain |
When her marriage broke up she lost the custody of her young children and in response to her plight parliament passed the Custody of Infants Act in 1839. This permitted a mother to petition the Court of Chancery for custody of her children up the age of seven and for access in respect of the older children. In 1873 the age was raised to sixteen.
Divorce
Up to 1857 divorce was only available to husbands, who were able to divorce their wives for adultery. Divorce was so expensive and difficult that it was rare, and in practice was only available to the aristocracy.In 1857 Parliament passed the Matrimonial Causes Act, which for the first time allowed a wife to divorce her husband.
- A husband could petition for divorce in the sole ground of adultery.
- A wife could not divorce for adultery alone but also had to cite in addition cruelty, desertion, incest, rape, sodomy or bestiality.
In the first year of the Act there were three hundred divorce petitions, 40 percent of them coming from wives.
Separate property
The Married Women’s Property Act of 1882 in effect ended the common law doctrine of coverture. The courts were forced to recognise a husband and a wife as two separate legal entities, in the same manner as if the wife was a feme sole. Married women could own stock in their own name. They could make wills. They were responsible for their own debts.Conclusion
- Before the French Revolution Western Europe had a variety of legal systems – some were based on Roman law, others on custom. However, all enshrined women’s legal inferiority.
- The French Revolution allowed divorce, with equal rights for both partners, but the Napoleonic Code restricted women’s rights to both divorce and the inheritance of property. Divorce was banned with the restoration of the monarchy.
- English common law made a sharp distinction between married and unmarried women and it was only in the later nineteenth century that married women obtained property rights.
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