The Doctrine Of Coverture Family Law

The doctrine of coverture is an old legal doctrine from English common law. Under the coverture doctrine, married spouses ceased to be distinct legal individuals but were considered to be a single, unified legal entity. Although the sentiment that married spouses are united as one is very romantic, the practical application of the coverture doctrine resulted in oppressive legal principles.

Coverture was put into practice until the 19th century when married women’s property laws were enacted. Today, jurisdictions that continue the English common law tradition—such as the United States, Australia, and India—no longer recognize the coverture doctrine.

However, some legal principles and societal customs that had a basis in the coverture doctrine endure today.

Matrimonial Property

One of the most significant effects of the coverture doctrine involves marital property. Today, the idea that both spouses own the property they acquire in marriage is treated as a given. After all, the typical married couple lives in the same residence, sharing things like kitchenware and furniture. If a married couple lived in different houses with separate sets of furniture, most people would assume they were getting a divorce.

However, the common law courts of England took this dynamic to an extreme by deeming married spouses to be “one flesh and one blood” with indistinguishable legal rights and responsibilities. Unfortunately, coverture did not result in the spouses having equal property rights upon marriage. Although husband and wife were considered to be one entity, historically it was the husband who got to exercise most of the property rights. Some historians point out that unmarried women had more rights than married women in England because a husband had not yet absorbed their distinct legal personas.

Today, married couples are effectively treated as one person when it comes to property ownership and, if the couple chooses, taxes. Only when the couple dissolves does each spouse assert an individual claim on marital assets, which most state laws presume belong to both spouses as a couple.

Testimonial Privileges

Another remnant of the coverture doctrine is the privilege of allowing spouses to refuse to testify against each other in court. Modern courts reason that the privilege promotes candor and honesty between spouses since they cannot be compelled to testify against the other in court. However, under the coverture doctrine, many courts reasoned that forcing spouses to testify against each other equated to state-compelled self-incrimination because spouses were the same person under the law.

Interspousal Crimes

One of the most extreme outcomes of the coverture doctrine was that it granted immunity for criminal offenses between spouses. For example, a person cannot be charged with a crime for assaulting or raping themselves. Because of the coverture doctrine, courts applied the same line of reasoning to dismiss domestic violence and Interspousal rape cases.

Remarkably, many states in America specifically codified an Interspousal rape exception which remained on the books well after the abolition of the coverture doctrine. States did not start to repeal such laws until the late 20th century, with the last few states finally abolishing them as recently as 1993.

Marital Names

For many people in the English-speaking world, taking a spouse’s family name in marriage is a foregone conclusion. Although the assumption of a spouse’s surname is not legally required, this social custom also has roots in the legal doctrine of coverture. However, when courts still applied the coverture doctrine, women were legally obligated to assume their husband’s surname.