Married Women and the Right to Own Property

By Brian Madigan LL.B.

Of course, married women have the right to own property. They have had that right ever since 31 March 1978.

That was the date that the Family Law Act (Ontario) came into force. Before that time, there was some uncertainty, although inroads had been made.

So, why did married women need a special provincial statute to change the law? That was due to the common law doctrine of “marital unity”.

At common law, the legal personality of the husband and wife were merged into one. And, the husband was “in-charge”. According to William Blackstone who wrote the first accredited commentaries on the common law, the wife was described as being under the husband’s “wing, protection and cover”. The obligation arose “out of beneficence”. Truly, that didn’t make all that much sense. This was a time long before “women’s liberation” when society was “sexist” in attitude. But, that’s a modern perspective.

Under this doctrine of marital unity the husband was responsible to look after his wife both during his lifetime, and afterwards for the remainder of her lifetime (should he predecease her).

A wife had the right to pledge her husband’s credit for the necessaries of life, but few, other rights until his death. At that time, as widow, she had the right to dower, which included one third of the profits from the land and the right to occupy the main house on the property until her death.

Upon marriage, it was clear that all the wife’s property became that of the husband. This included real property and chattel property. This was quite evident and well established by the 13th century.

There was one exception to the chattel vesting principle, and that was personal paraphernalia or personal effects. Often, they had to be confined to a box or treasure chest. Anything more, became the property of the husband.

Real estate was the major asset. A wife may have been in the possession of real property from her first husband or her father or an estate. As an unmarried woman, she possessed the rights of alienation, sale and disposition. But, once she married, those rights became subsumed with her husband. Converyancing practice was not well-developed in the 13th century, so in some cases, she signed with the husband, and in other cases, the husband signed alone, but one thing was always perfectly clear and that was that she could never sign alone. She had lost that right upon marriage.

However, that did not really stop the clever, wealthy landowner from protecting his daughter. He set up a trust. A trusted friend would be the legal owner of the property. She would be the equitable beneficiary and the new husband would never get his hands on the money or the land. The only drawback was that only the rich could afford to set up this type of trust, often referred to as a settlement.

This common law doctrine survived into the 19th century, and then various reforms were enacted to limit its effect. However, it was not until 31 March 1978, that the Province of Ontario abolished the vestiges of this doctrine forever. Dower and the husband’s corresponding right of “courtesy” were abolished, and it was confirmed that married women had the same rights as unmarried women, and that all women had the same rights as men.

Actually, 1978 is not that long ago.

Here are some of the important rights established in the Family Law Act:

PART VI
AMENDMENTS TO THE COMMON LAW

Unity of legal personality abolished

64. (1) For all purposes of the law of Ontario, a married person has a legal personality that is independent, separate and distinct from that of his or her spouse.

Capacity of married person

(2) A married person has and shall be accorded legal capacity for all purposes and in all respects as if he or she were an unmarried person and, in particular, has the same right of action in tort against his or her spouse as if they were not married.
Purpose of subss. (1, 2)

(3) The purpose of subsections (1) and (2) is to make the same law apply, and apply equally, to married men and married women and to remove any difference in it resulting from any common law rule or doctrine.

Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com