Vanessa Carment
JD Candidate, 2019
Coverture is an historical common law doctrine restricting female property rights.[1] Though coverture laws were repealed in the 20th century, their patriarchal and oppressive influence persists. Coverture is entrenched in two arguments that belittle female autonomy. The first is that female biology makes women “unfit for tasks of public importance,” including decision-making regarding the treatment of their own bodies.[2] The second argument is that women are unfit for positions of power because they are morally pure and delicate.[3] These arguments remain the ideological basis of modern property-based feminist issues, including abortion rights and married women taking their husband’s name.
Historically, coverture changed a woman’s legal status after marriage so the husband and wife became one legal person.[4] Essentially, the wife came under the ‘cover’ of her husband.[5] Coverture had a particularly negative effect on women’s property rights. Property ownership and autonomy are deeply connected, and coverture was borne out of a patriarchal system that controlled and oppressed women by regulating property.[6]
Regulation of women’s bodies is at the core of the abortion debate, which turns on whether a woman is capable of deciding what should happen to her body while she is pregnant. While pro-choice advocates argue that women should retain autonomy over their physical health, anti-choice arguments are deeply rooted in coverture ideology, suggesting that “womanhood [is] a lesser state that lacks the ability to reason and make competent decisions.”[7] Coverture stripped women of their legal autonomy by taking away their property rights; anti-choice advocates take away women’s rights to control their bodies by relying on out-dated falsehoods about women’s capacity to make decisions.
In addition, coverture forms the ideological basis of surname change in marriage. Previously, coverture merged the husband and wife into one, stripping the woman of her individual property rights. Taking the husband’s name symbolized the merger.[8] Even though legally binding coverture has been repealed, this element of the institution of marriage remains for many couples. Lou Heinrich describes how taking one’s husband’s name is a “patriarchal, male-centric tradition whose history is rooted in possession and control.”[9] The underlying purpose of changing one’s name and its continued prevalence makes it a modern feminist issue, which demonstrates the lasting effect of coverture in Western society.
The continued impact of coverture is a feminist issue that cannot be overlooked simply because the black letter laws were repealed. Being aware of legal history is essential to understanding modern feminist legal issues. Property, gender, and autonomy are deeply interconnected and influenced by history. Now more than ever, society must be critical of how the dead hand of coverture continues to restrict female autonomy in modern society.
[1] Due to the space constraints of this blog post, I will only be addressing these issues in the context of heterosexual relationships. However, the effect of coverture reaches into the LGBTQ context and deserves academic exploration.
[2] Joan Hoff, “American Women and the Lingering Implications of Coverture” (2007) 44 Social Science J 41 at 44.
[3] Ibid.
[4] Karen Pearlston, Law of Coverture (Faculty of Law, University of New Brunswick, October 26, 2016).
[5] Ibid.
[6] Lou Heinrich, “Name Calling: Coverture in a Feminist Age” (2015) 20 Kill Your Darlings 81 at 84. [Henrich]
[7] Maggie Cheu, “Now and Then: How Coverture Ideology Informs the Rhetoric of Abortion” (2012) 22 Tex J Women & L 114 at 114.
[8] Heinrich, supra note 2 at 84.
[9] Ibid at 83.
University of Ottawa Association of Women and the Law 