MARRIED WOMEN AND THE LAW T HE discriminations of the law,
in particular between men and women and between women married and unmarried, are curious. Some have their origin in sentiment, some in tradition ; some, though very few, may be based on reason. Their survival into the fourth decade of the twentieth century would be surprising but for the recognized fact that changes in the law habitually lag behind changes in public opinion. In no sphere -is that more conspicuously true than in regard to the legal responsibility of a husband for a wife's defaults and misdemeanours—in technical terms " the liability of the husband for the torts of the wife "—on which Lord Hanworth's Law Revision Committee issued its report last week. Here in its crudest form is manifested a radical discrimination, in respect both of rights and of duties, between the married and the unmarried woman. The latter stands before the law in the same position as a man. She can enter into a contract, and judgement against her in respect of a breach of it, or of torts which she may have committed, can be enforced against her personally. She can, for example, be made bankrupt, or sent to prison in default of payment of fines. A married woman could originally not make a contract.. Now that within certain limits she can, process against her is limited to her separate property. The liability is proprietary, not personal, and her husband is liable for the consequences of her. torts. That broadly is the situation deriving from the old Common Law doctrines, modified by interpretations devised by the Court of Chancery, and by various later statutes, notably the Married Women's Property Act of 1882.
But the Law is not always conspicuous for lucidity. If it were the Courts would have much less to do. Even the statute just cited, which was meant to settle the married woman's rights regarding property once for all, has lent itself to yarious interpretations, and the main question Lord Hanworth's committee had to decide was how to deal with the leading case of Edwards v. Potter (1925), when the House of Lords laid it down by a majority that a husband could under this Act still be made liable for his wife's torts, but a minority, consisting of Lords Birkenhead and Cave, held that he could not. The Hanworth Committee shares the views of the minority, and believing that " the day has now come when a married woman should alone answer for her own liabilities " recommends, in brief, that in the matter of making contracts, of suing and being sued, being .made bankrupt, or suffering the enforcement of judgements against her, " a married woman shall in all respects be in the same position as an unmarried' woman or a man." The Common Law rule that a husband should be liable - for the wrongdoing of his wife would thus be abrogated.
There can be no question but that these recommenda- tions are in accord with The trend of modern thought. In days when, as the committee points out, women, married as well as singlet. engage in almost all trades and professions, fill almost every kind of official post and exercise every sort of right and franchise, it would be altogether anomalous that they should not hold property in their own right, even though married, and accept the same liabilities in regard to it as any other property-holder, whether man or unmarried woman. If the commit- tee's findings should be accepted, as they no doubt will be, and when legislation regarding them is being drafted, certain other questions, notably the operation of the Income Tax Acts in regard to married women's property, should' be seriously considered. It is open to very serious question whether it is in the public :interest that a man should be taxed on his wife's income (and often involved in a higher rate, or in super-tax, in conse- quence) but not on that of the same woman if she is merely his mistress. Two different statutes would need to be amended if the general recommendations of the Hanworth Committee are to be adopted, and inceme-tax anomalies to be rectified at the same time.
But if such changes .are, as has been said; so com- pletely in accord with the trend of modem thought- that they cannot be resisted, it is well to, recognize how: far we have travelled from the basic assumption of the Common Law that a married woman's existence was merged in that of her husband ; and, inevitable, though it may he that the law should recognize and regularize the independence which the married woman has in practice claimed and asserted in every .sphere in the post-Victorian era, it, is worth while considering whether the evolution is „undiluted gain. No institution owes more than marriage to religious- and ecclesiastical tradi- tion, and the old Common Law doctrine was a mere legal reflection o.41,the assumption that " they twain shall be one flesh," that they. hold all their property in common, but with the husband always, as head of the family, answerable for the whole estate. It arose, that is to say', directly out of the Christian conception of marriage, that the two spouses form a single corporation, in which the husband assumes the liabilities and res- ponsibilities of sole governor.
Christian marriage is not to be regarded as a contract by which the parties to it can make their own conditions; it is a status whose conditions are prescribed by the authority of religion. With regard to the property of the " corporation," the Continental systems of law treat it as belonging jointly to both spouses, while the English system, following more closely the letter of ecclesiastical doctrine, put the whole under the control of the husband. But the Common Law conception has been extensively modified in the course of cen- turies, and if the Hanworth Committee's recommen dations are embodied in legislation virtually nothing of it will remain. The wife, exercising full rights over her own property, will be liable in respect Of her own contracts and torts, and her husband in those spheres will have no responsibility for her. Marriage in the eyes of the law has become a civil, not a religious, retation- ship, and the impropriety of applying compulsorily to non-Christians rules and practices based on a Christian conception of marriage is up to a point recognized. Whether the logical consequences of the distinction should be accepted over a wider' field—in regard; for example, to the divorce laws—is another and larger question.
But no change' in the statute law regarding certain aspects and consequences of marriage can affect even remotely the Christian ideal of marriage, and it would be a profound misfortune if the changes now suggested had any such result. The old conception of two people becoming one, facing the vicissitudes of life together, casting their goods into a common store, profiting by " the mutual society, help and comfort that the one ought to have 'of the other both in prosperity and adversity," is not to be relinquished or modified as result of any changes in the civil law. Tie law was given for our infirmities; but that is no justification for giving rein to our infirmities till we are checked by the law. There is a 'maximum to aspire to far above the minimum that the lair requires.
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