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Lord Wilson revealed an interest in the history of family law when he gave last week’s High Sheriff of Oxfordshire’s Annual Law Lecture. The High Sheriff’s Law Lecture is an annual event dating back to at least the sixteenth century that traditionally takes place on the second Tuesday of October, just before the ceremonies which mark the start of the judicial year in Oxford.
The speech began by analysing the relative autonomy wives had in Anglo-Saxon times (through their capacity as keepers of store cupboards) in comparison with feudal times, where wives could not own property as they were considered largely invisible to the law.
In the words of law-French, the wife was a “feme covert” instead of a “feme sole”. In law she was ‘covered up’ by her husband. Hence my title this afternoon: the wife was legally in the shadow of the husband and she was substantially invisible to the law.
Lord Wilson explained the consequences of coverture in contract law and criminal law and its continuance until relatively recently, and the legal offerings given to wives in an attempt to compensate in some way for their inferior position, such as the concept of dower.
What she got by way of dower was a life interest, which endured beyond any remarriage on her part, in one third of her late husband’s land. Some husbands tried to hide their land by putting it in the name of friends so as to defeat any future claim to dower on the part of their widows.
He touched on the historical enshrinement of religious principles in English law through regulation of marriage – for example the duty of a wife to obey her husband was commonly part of marriage ceremonies until only 40 years ago.
He also explained the legal rights husbands used to have to beat their wives, and the view of the criminal law that marriage meant the wife had given irrevocable consent to her husband having sex with her whenever he wanted it, which existed up until 1991.
Until Victorian times, most wives who had been physically forced by their husbands to have sex could not even leave them because, if they did so for that reason, they would not be entitled to maintenance and they would lose custody of their children. John Stuart Mill wrote that the husband’s slave had been in a better position to resist his sexual advances than was his wife. It was only in 1937 that cruelty, which could include sexual violence, became a free-standing ground for divorce.
Lord Wilson finishes with a set of rhetorical questions on whether the institution of marriage is on the way out, but describes the financial effects and the separate but equal status of husbands and wives today as hard-won and not something to be taken for granted. A transcript of the full lecture is available here on the Supreme Court website.
