Tuesday, April 20, 2010

Dannin on Michigan's Married Women's Property Acts

Ellen Dannin, Pennsylvania State University Dickinson School of Law, has posted Marriage and Law Reform: Lessons from the Nineteenth Century Michigan Married Women's Property Acts. Here is the abstract:
Even though fought for as restoring to married women the property rights they had as single women, the early Married Women’s Property Acts more accurately created “a new era of quasi coverture”, that made incremental changes in married women’s status and rights. But if they did not give married women the rights of all free men and free single women, then why were they enacted? The two most common theories into the late 1970's was that they were enacted as (1) women's rights or protective legislation or (2) debtor relief, allowing an indebted husband to place his property beyond the reach of his creditors by conveying it to his wife.

This is the first empirical study to examine Michigan’s Married Women’s Property Acts. It attempts to shed light on the nature and effects of the Michigan MWPA by examining Washtenaw County, Michigan deeds from 1840 through 1865, a period that begins four years before the first Michigan MWPA was enacted and extended through the Civil War. The original purpose of the study was to test whether the law was feminist legislation or debtor protection. If the Act was feminist legislation, then conveyances to and from married women should be found after the MWPA was passed – but not before. If the MWPA was debtor relief, then not only should the number of married women grantees rise, but there should also be conveyances from husbands to wives in order to place property out of the reach of creditors, including, potentially, deeds with nominal consideration.

Those predictions were far from the mark. (1) Married women appeared as grantors throughout the study, including in the years before they had a legal right to own or convey property; (2) there were virtually no women grantees until the very last years of the study; and (3) there were no conveyances from husbands to wives; and (4) there were but minor changes in conveyancing patterns as to married women over the decades studied.

Knowing what a law does not do, however, does not explain why it was enacted. We can say with certainty that a law that changes fundamental relationships and rights is not passed without support and effort. It may be that the Michigan MWPA was intended to be debtor legislation but was not used for that purpose because people did not feel comfortable giving wives property. Unfortunately, it is now more than a century too late to do survey research on mid-nineteenth century opinions on using the MWPA. It may be that the best explanation is that any law that affects fundamental rights is the product of many motives. We should also not discount the effect judicial interpretation can have on laws, even, at times, wholly transforming the law in the process of adjudication.

This does not mean the answer is “all of the above”. This article examines the traditional explanations for the enactment of the Michigan Married Women’s Property Act and its operation (1) Debtor relief and (2) Women’s rights legislation, as well as other viable theories, including that the Michigan MWPA was (3) Progressive legislation enacted in a politically progressive state, (4) the fruit of already existing gender equality, and (5) affected by other contemporaneous law.

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