Married Women and Property Law in Victorian Ontario

Christopher English is a professor of history at Memorial University of
Newfoundland.

This is the first sustained Canadian study of the statutory reforms that
enabled married women— without the permission of their husbands—to
control, to encumber (for example, to mortgage), and to dispose of
property (cash, goods, or land) that they had brought into or inherited
during their marriage. The reforms between 1837 and 1884 were
significant (“truncated rights ... were preferable to none at all”)
despite the irony that married women finally achieved only the same
control over their property they would have enjoyed had they remained
single. This was not revolutionary change, and it affected only a
minority of married women because most had little or no property. Those
who worked outside the home won control over their own wages, but the
law ascribed no value to work performed within the home. It would be
another century before wives could claim a share of marital assets.

The book is especially notable for its wonderful—often
touching—case histories of women who, abused or deserted by their
husbands, sought remedies from the court: protection, custody of their
children, and alimony. The last granted, in effect, a judicial
separation, although it gave no right to remarry. Generally, the courts
were sympathetic to an aggrieved and innocent wife—although she might
never collect from an absconding husband who transferred both her assets
and his own to a third party.

Legislation was gradual, remedial, and often ineffective because it was
tailored to meet the contemporary assumption that a wife either could
not—or should not—control her own property. Rather, under the
principle of marital unity, their husbands would. If they proved
unworthy or dishonest trustees, the courts would step into their shoes,
thus maintaining the unity and validity of the paternalistic and
patriarchal family.

All this is engagingly argued (although with some repetition). But was
Ontario typical? The author notes special features that influenced the
course of reform there: the late emergence of the court of Chancery
(1837); the absence of divorce; deference to English norms;
urbanization; fraud between colluding couples (which disadvantaged
creditors); and the retarded fusion of equity and the common law. These
factors would not always appear elsewhere. And nowhere is the
funda-mental preliminary question raised of whether the English law of
matrimonial property—so evident in early Victorian Ontario—was also
“received” into other Canadian jurisdictions. Until this issue is
resolved, the opening claim of this valuable study that “in all common
law jurisdictions, marriage, for women, represented civil death”
remains only a hypothesis.