Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America

TLDR: In Thaler v. Thaler as mentioned in this paper, a 1977 New York divorce case awarding alimony to the husband, the judge had occasion to summarize the nineteenth-century shift in the legal status of married women.

Abstract: In Thaler v. Thaler, a 1977 New York divorce case awarding alimony to the husband, the judge had occasion to summarize the nineteenth-century shift in the legal status of married women. At common law, he asserted, "the husband and wife were orne and the husband was the one .... But with the advent of the married woman's property acts ... any previous justification for this one-way support duty faded."' In the same year, however, an unemployed Brooklyn construction worker aired his reservations about his wife's employment by evoking the old common law image of marriage. "When you get married," he said, "you figure it's gonna be like one. Only it's always the husband's one."2 The first of these comments suggests the focus of this essay: challenges to the common law doctrine of marital unity during a pivotal era of American law, roughly 1820-1860.3 The second comment reflects its emphasis: the uncanny persistence of that doctrine far beyond its Christian and common law origins. The judge in Thaler v. Thaler based his decision, in part, on an 1848 statute extending to married women the right to own their own property. He interpreted the statute as a significant legal alteration in the patriarchal family and implied that like the many other statutes passed in common law jurisdictions during this period, it marked the beginning of legal equality between wives and husbands.4 By contrast, this essay contends that the married women's property acts failed to make such a significant alteration. Admittedly, if one defines patriarchy in the husband-wife relationship as the reduction of the wife to the status of property owned and controlled by the husband, one could argue that it never existed in its purest form in the Anglo-American legal tradition.5 Yet, basic elements of that patriarchal construct underpinned all of Anglo-American domestic relations law, and they continued to exist long after the enactment of the married women's property acts of the mid-nineteenth century.