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A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law

Published online by Cambridge University Press:  24 April 2015

Alina Semo Kofsky
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Extract

Woman is a slave, from the cradle to the grave. Father, guardian, husband—master still. One conveys her, like a piece of property, over to the other.

—Ernestine Rose

In the past several decades there has been a growing movement within the Jewish community to improve the self-image and status of women in Halachah (Jewish law). There is no doubt that this movement was largely affected by the women's liberation movement that has been taking place since the beginning of this century. Despite the assertion of many rabbis and scholars that the role of women in traditional Judaism has been noticeably superior to that of other contemporary civilizations, critics frequently point to the many religious activities from which women continue to be excluded. In the past, women were not accepted as witnesses in a trial; did not inherit equally with their male siblings; were not required or expected to perform the daily religious duties assigned to men; and had to sit separately from the males in the congregation. Only recently have Jewish women been ordained as rabbis and relied on as cantors; allowed to serve on congregational boards as presidents of congregations; granted equal access to study, and allowed to perform all mitzvot; counted in a minyan, the quorum needed for a public worship service, and called to the pulpit for aliyot during the Torah service; and able to ignore the formal requirement of providing a get, the bill of divorce, although it can still be requested.

Type
Research Article
Information
Journal of Law and Religion , Volume 6 , Issue 2 , 1988 , pp. 317 - 353
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1988

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References

1. See, e.g., Gittelsohn, Rabbi R., Love, Sex and Marriage: A Jewish View 191(e) (1976) [hereinafter Gittelsohn]Google Scholar.

2. Id. at 191h.

3. Only about five percent of all Reform congregations in the United States have women as presidents and vice-presidents, and only four percent of the Union of American Hebrew Congregations members are women. Priesand, Rabbi S., Judaism and the New Woman 35 (1975) [hereinafter Priesand]Google Scholar.

4. It should be noted that these developments have been predominantly characteristic of the Reformed Jewish movement; the early leaders of the Reform movement in Germany wanted to give women equality, and has ordained women as rabbis since 1972. Currently, the Conservative movement has also attempted to grant women more equality by allowing them to sit together with men in the congregational pews, and decreeing that women may now be counted in a Minyan and be ordained as rabbis. The Conservative movement is currently considering whether women may be allowed to perform the Mitzvot of wearing a tallit. Basinger, S., Preserving the Covenant—A Challenge for Jewish Women, in The Life of the Covenant: The Challenge of Contemporary Judaism 1–2 (Edelheit, J. ed. 1986)Google Scholar; Gittelsohn, supra note 1, at 191j; Klagsburn, F., Voices of Wisdom 135 (1980)Google Scholar. Nevertheless, the Orthodox branch has steadfastly resisted any such changes, deeming them impermissible.

5. Deaf mutes, minors, and the insane have had no legal standing in Jewish courts. Their statements, either as litigants or as witnesses, have never been accepted in a court of law. Meiselman, M., Jewish Women in Jewish Law 73 (1978) [hereinafter Meiselman]Google Scholar. Furthermore, as late as the nineteenth century, American and English common law also classified women in the same way. In 1847, Benjamin Hall writes in The Land Owners' Manual that in New York, “all persons except idiots, persons of unsound mind, married women, and infants” might devise realty in a will. Basch, N., In the Eyes of the Law: Women, Marriage, and Property in the 19th Century New York, 67 (1982) [hereinafter Basch]Google Scholar.

6. Priesand, supra note 3, at 3.

7. Id. at 3-4.

8. Id. at 4.

9. Brayer, , The Role of Jewish Law Pertaining to the Jewish Family, Jewish Marriage and Divorce, in Jews and Divorce 5 (Freid, J. ed. 1968)Google Scholar.

10. Priesand, supra note 3, at 6.

11. Id. Proverbs 31:10-31 (Oxford) states:

A Capable Wife

Who can find a capable wife?

Her worth is far beyond coral.

Her husband's whole trust is in her,

and children are not lacking.

She repays him with good, not evil,

all her life long.

She chooses wool and flax

and toils at her work.

Like a ship laden with merchandise,

she brings home food from far off.

She rises while it is still night

and sets meat before her household.

After careful thought she buys a field

and plants a vineyard out of her earnings.

She sets about her duties with vigour

and braces herself for the work.

She sees that her business goes well,

and never puts out her lamp at night.

She holds the distaff in her hand,

and her fingers grasp the spindle.

She is open-handed to the wretched

and generous to the poor.

She has no fear for her household when it snows,

for they are wrapped in two cloaks.

She makes her own coverings, and clothing of fine linen and purple.

Her husband is well known in the city gate

when he takes his seat with the elders of the land.

She weaves linen and sells it,

and supplies merchants with their-sashes.

She is clothed in dignity and power

and can afford to laugh at tomorrow.

When she opens her mouth, it is to speak wisely,

and loyalty is the theme of her teaching.

She keeps her eye on the doings of her household

and does not eat the bread of idleness.

Her sons with one accord call her happy;

her husband too, and he sings her praises:

‘Many a woman shows how capable she is;

but you excell them all.”

Charm is a delusion and beauty fleeting;

it is the God-fearing woman who is honoured.

Extol her for the fruit of all her toil,

and let her labours bring her honour in the city gate.

12. See infra notes 37-42 and accompanying text for further discussion.

13. Priesand, supra note 3, at 6.

14. Id.

15. Id.

16. Shabbat 118b cited in Hauptman, , Women in the Talmud, in The Jewish Woman: An Anthology 161 (Koltun, L. ed. 1973) [hereinafter Hauptman]Google Scholar,

17. Id.

18. Id.

19. Kuzmack, L., Rabbinic Interpretations of Biblical Women in Aggadic Literature 20 (04 21, 1975) (unpublished M.A. Thesis: Baltimore Hebrew College) [hereinafter Kuzmack]Google Scholar.

20. Gaster, , Some Stories About Jewish Women, in L. Jung, Woman 18–20 (1970)Google Scholar, quoted in Kuzmack, supra note 19, at 20.

21. Kuzmack, supra note 19, at 20.

22. Priesand, supra note 3, at 26.

23. Kuzmack, supra note 19, at 20; Hauptman, supra note 16, at 162.

24. Hauptman, supra note 16, at 162.

25. Id.

26. Kuzmack, supra note 19, at 22.

27. Id. Beruriah's wisdom was further demonstrated by the manner in which she informed her husband of the death of their two sons:

When [Rabbi Meir] returned home to celebrate the Sabbath, she welcomed him as if no sorrow had befallen them. When he asked for his sons, she said that she would explain their absence after they had finished the Sabbath meal. She then asked his advice in a very important matter.

A stranger who had given her some jewels to take care of, she said, had now returned and demanded that she give the jewels back. She had grown very fond of them and wanted to know if she had to return them. Rabbi Meir was astonished that a woman as wise as his wife would ask such a foolish question, and he replied that certainly she must give them back. At that point Beruriah took him into the room where their two sons lay dead and in his grief she comforted him. ‘They were jewels, given to us by God for safekeeping,” she said, ‘until he demanded them for Himself once again.’

Priesand, supra note 3, at 26.

28. As Maimonides declared: “…[S]he should not sit idle, without work, because idleness leads to immorality.” Maimonides, , The Code of Maimonides: Book IV-The Book of Women 131 (Klein, I. trans. 1972) [hereinafter Maimonides]Google Scholar.

29. Priesand, supra note 3, at 27.

30. Id. at 6.

31. Id.

32. Id. The concept of the Levirate marriage perpetuated the status of women as property. Biblical law provided that the widow of a man who died childless should marry her brother-in-law. (Deut. 25:5–10)Google Scholar. The rationale for this ancient tradition was to prevent the inheritance from passing outside of the family; to continue the name of the deceased brother: (“the first born that she beareth shall succeed in the name of his brother that is dead, that his name be not blotted out of Israel”; and to prevent the widow from becoming a burden on the community. The widow therefore became the property of her husband's family, and by requiring her brother-in-law to marry her, the family's property right in her was maintained.

Although this tradition was popular in deuteronomic time, (seventh century B.C.E.), where it was considered disgraceful for the brother-in-law to refuse to marry the widow, by the fourth century B.C.E., the ceremony of halitsah, (in which the brother-in-law freed the widow and allowed her to marry whomever she wished) became customary. Horowitz, G., The Spirit of Jewish Law 283 (1963)Google Scholar [hereinafter Horowitz]; Priesand, supra note 3, at 1011.

33. Priesand, supra note 3, at 8. In Exodus 20, for example, the last of the Ten Commandments says: “Thou shalt not covet thy neighbor's house … thy neighbor's wife, nor his manservant, nor his maid-servant, nor his ox, nor his ass, nor anything that is thy neighbor's.” Interestingly, in Deuteronomy 5 the prohibition against coveting thy neighbor's wife is listed first, thus leading to the conclusion that the woman had now achieved a higher status.

34. Horowitz, supra note 32, at 253.

35. The ketubah has been described as a “legal document embodying the essential points agreed upon by the parties and sanctioned by the law as to the manner of their living together as husband and wife.” Epstein, L., The Jewish Marriage Contract 2 (1927)Google Scholarcited in Priesand, supra note 3, at 14.

36. Priesand, supra note 3, at 14.

37. Roth, , The Success of the Medieval Jewish Ideal in Great Ages and Ideas of the Jewish People 294 (Schwarz, L. ed. 1956) [hereinafter Roth]Google Scholar.

38. Kravetz, Rabbi J., Divorce in the Jewish Tradition in Jews and Divorce 171 (Freid, J. ed. 1968)Google Scholar.

39. Roth, supra note 37, at 294.

40. Id. Many responsa during this time that dealt with problems involving women included the statement: “Nowadays, it is commonplace for women to engage in business.” Meiselman, supra note 5, at 83.

41. Id. at 294-95.

42. Id. at 295.

43. One scholar has argued that the ketubah was a contract in which both parties participated equally, thus attempting to dispel the image of the wife as the husband's property. Jewish law recognizes two types of contracts: the kinyan issur—a contract which causes a change in ritual status; and the kinyan mamon—a contract which effects a monetary change. Marriage, and therefore the ketubah, it is argued, is really a kinyan issur, because of the resulting bond between the bride and the groom. But critics have argued that in fact the kinyan mamon more accurately describes the marriage, whereby the woman becomes the acquired object. Meiselman, supra note 5, at 96-97.

44. Horowitz, supra note 32, at 297.

45. Id.

46. Id.

47. Priesand, supra note 3, at 20.

48. Horowitz, supra note 32, at 308.

49. Id. These obligations were:

(1) food; (2) clothing; (3) conjugal rights (Ex. 21:10); (4) care and cure in sickness; (5) redemption of the wife from captivity; (6) provision for her burial; (7) payment to her sons by him of the amount of the ketubah upon her death (the obligation of the benin dikrin); (8) support after her death of any daughters that she may have brought with her at marriage, until they came of age or until they were married, if that occurred while they were still minors; (9) support during her widowhood until she collected the ketubah or remarried; and (10) that the lien of the ketubah was to be a charge on all his property binding on himself and his heirs.

50. Id. at 309-10. The form of the document most commonly used today reads as follows: “On the…..day of the week, the…..day of the month, in the year……since the Creation of the World, the era according to which we are accustomed to reckon here in the City of……State of…..United States of North America:

“Whereas, the groom…..the son of…..said to the virgin…..daughter of…..‘Be thou my wife according to the law of Moses and Israel, and I will work for thee, honor, support, and maintain thee in accordance with the custom of Jewish husbands, who work for their wives, and honor, support, and maintain them in truth. And I will give thee 200 zuz as mohar of thy virginity which is due thee, and thy food, clothing and necessaries, and cohabit with thee according to universal custom;’ and

“Whereas, this virgin…..daughter of…..consented and became his wife; and

“Whereas, the dowry that she brought from her father's house in silver, gold, ornaments, clothing, household furnishings and bed-clothes, amounting in all the value of……the groom has taken upon himself; and

“Whereas, the groom has consented to match that sum by adding thereto the sum of…..making a total in all of……

“Wherefore did the groom…..the son of…..declare thus: ‘I take upon myself and my heirs after me the responsibility of this shetar of ketubah, of the Dowry, and of the Addition, that all shall be paid from the best of my property and my possessions, wheresoever situate, that I now possess or may hereafter acquire, both real and personal. All my property, even the mantle on my shoulders shall be security for and subject to this shetar of ketubah, this Dowry, and this Addition, in life and in death, from this day and forever more.’

“The responsibility and the full force of this shetar of ketubah, the Dowry, and the Addition did the groom take upon himself with the full force and effect of all shetars of ketubah and their additions as is customary for the benefit of daughters of Israel, and as made in accordance with the institution of our sages (may their memory be for a blessing), not as a penal obligation nor as a mere form of document.

“We have taken kinyan by means of an article fit for the purpose from the groom…..

the son of…..on behalf of the virgin…..the daughter of…..with respect to all that is hereinabove written and set forth. And all is valid and established.

……….Witness

……….Witness

51. Id. at 312.

52. Id. Zuz or denars was a form of coin used during ancient times. Today, it is estimated that one zuz would equal 15 cents, which, during that period of time, would have had substantial purchasing power.

53. Id. at 313. Maimonides stated:

The Geonim in all the academies have ordained that the wife may collect her ketubah after her husband's death even out of movables …. Likewise, all the other conditions stipulated in the ketubah are in this respect subject to the same rules as the ketubah itself, and may be collected out of movables as well as out of land …. Maimonides, supra note 28, at 100.

54. Maimonides stated:

A widow who produces a ketubah may swear an oath and may then collect her ketubah indefinitely, even a hundred years hence, whether she resides in her husband's house or in her father's house.

If she cannot produce a ketubah, she is entitled to nothing, not even to the statutory ketubah, and not even if she demands it on the very day of her husband's death.

The same applies to a divorcee, who is not entitled even to the statutory ketubah until she produces the document itself.

When does this apply? In places where it is the practice to write a ketubah. Where the practice is not to write a ketubah but to rely on the terms established by the court, she may collect the statutory ketubah even if she cannot produce the documentary ketubah, whether she has been divorced or widowed, whether she resides in her husband's house or in her father's house. She is not, however, entitled to the supplementary amount unless she produces clear proof.

What is the time limit for a widow entitled to collect the statutory ketubah, in a place where no ketubah is written? If she resides in her husband's house, she may do so indefinitely; if she resides in her father's house, the time limit is twenty-five years. If she comes to collect after twenty-five years, she is entitled to nothing, because had she not waived her right to it, she would not have kept silent all this time. Inasmuch as she is not residing with the heirs, she cannot claim, ‘I was embarrassed to demand payment from them while they reside with me in the same house.’ Maimonides, supra note 28, at 104-05.

55. Horowitz, supra note 32, at 315.

56. Id.

57. Id. at 295.

58. The Mishnah spells out seven labors for which the wife was responsible: grinding corn, baking, washing, cooking, nursing her children, making beds, and working in wool (but not in flax, which was considered more strenuous). Ketubot V, 5 cited in Horowitz, supra note 32, at 297.

59. Id.

60. Id.

61. Id. at 300.

62. Id. Maimonides stated:

[A]ll property belonging to the wife and not brought by her to her husband, nor registered in the ketubah, but remaining in her own possession, or property that came to her by way of inheritance subsequent to her espousal, or by was of gift—all such property is likewise called melog property, since it all remains under her authority.

Maimonides, supra note 27, at 99.

“If, however, [the husband] does not become surety for the dowry, and it remains under the wife's authority, the rule is that if there is a depreciation, she must bear the loss, and if there is an increment, it belongs to her. Such property is melog property.” Id. at 98-99.

63. Id.

64. Id. at 298.

65. Id. at 299.

66. Id.

67. Id. at 299-300.

68. Id. at 300.

69. Id. The assets “were like a flock of sheep because they produced a yield which the husband enjoyed and they were like iron because they were indestructible property of the wife by virtue of his guaranty.”

Maimonides stated: “If the husband becomes surety for the dowry, so that it comes under his authority, the rule is that if it depreciates, he must bear the loss, and if it goes up in value, the increment belongs to him. This is what is called ‘iron sheep property.’” Maimonides, supra note 28, at 98.

70. Horowitz, supra note 32, at 301.

71. Id In Rif and Rosh's opinion, a husband could nevertheless sell real “iron flock” property, although the conveyance would still be subject to the termination of the marriage within the wife's lifetime.

72. Id.

73. Id. See infra notes 95-125 and accompanying text for further discussion of inheritance rights.

74. Id.

75. Id.

76. Id.

77. Id. at 304.

78. Id.

79. Id.

80. Id.

81. Compare with Sharpe v. Buckstaff, 99 Wis. 2d 114, 299 N.W.2d 219 (1981), infra note 136.

Furthermore, the husband was obligated to support his wife in the manner to which she was accustomed, and to comport with her situation in life, as well as to local custom. The Talmud also fixed a minimum amount of food and maintenance that even the poorest husband had to provide. Horowitz, supra note 32, at 302.

82. Id. at 305.

83. Id. at 306.

84. Id. at 306 n.12. Nevertheless, a stipulation in such an agreement that the husband would not inherit from his wife was invalid.

85. Id.

86. Id. at 306-07. Even though such trusts were legally valid, they were frowned upon by Talmudists, who claimed that they were by nature fraudulent, often being kept secret from the husband. Mar Samuel of Nehardea, a famous master of Talmudical civil law, once declared: “I formally expound and teach that if a ‘shetar pisis’ [the name of the trust] were presented to me, I would tear it up and destroy it.”

87. Maimonides stated that “[t]he property that a wife brings to her husband, whether real estate, or movables, or slaves, even though registered in the ketubah document, is nevertheless called not ketubah, but dowry.” Maimonides, supra note 28, at 98.

88. Priesand, supra note 3, at 15.

89. Horowitz, supra note 32, at 307. In fact, because of the importance of providing a dowry, the court had the duty of setting aside a portion of the father's estate for the dowry of the orphaned daughter in case the heirs failed to provide for one.

90. Priesand, supra note 3, at 15.

91. Horowitz, supra note 32, at 307.

92. Id. Mohammedan law on dowry differed in an important way from Jewish law. Jewish law did not allow the wife to waive her dower rights in favor of her husband, but Mohammedan law allowed this. The Koran states: “Give them their dowry according to what is ordained, but it shall be no crime in you to make any other agreement among yourselves. If they [the women] voluntarily remit unto you any part of it, enjoy it with satisfaction and advantage.” Amram, D., The Jewish Law of Divorce According to Bible and Talmud 115–16 (1968)Google Scholar.

93. Horowitz, supra note 32, at 307.

94. Id. at 308.

95. Meiselman, supra note 5, at 87.

96. Id.

97. Id. See also notes 111-14, 122-25 and accompanying text for further discussion.

98. Id. at 84. See infra note 104 and accompanying text for further discussion.

99. Id.

100. Id.

101. Id.

102. Id. at 389; Meiselman, supra note 5, at 89.

103. Meiselman, supra note 5, at 90. The Mishnah states: “One who dies and leaves sons and daughters, at the time that the estate is large, the sons inherit and the daughters are supported. If the estate is small, the daughters are supported and the sons go begging from door to door.”

104. Horowitz, supra note 32, at 390. “Said R. Aba in the name of R. Asia: ‘They place the widow with respect to the daughter in the same position as the daughter with respect to her brothers if the assets are few.’”

105. Id. at 389.

106. Id.

107. Id.

108. Id. at 391.

109. Id. at 390.

110. Id.

111. Id.

112. Id.

113. Id.

114. Id. at 392.

115. Id. The Talmud provided the following discussion: “As far as inheritance goes, a son is preferable; as far as harvaha [interpreted alternatively as ‘support’ and ‘gifts’], a daughter is preferable.”

Rabbenu Gershom's interpretation is:

As far as inheritance goes, the son is given preference, for he is kam tahtav, i.e. he replaces and takes over the functions of the father. As far as disposition of the estate by gift is concerned, a daughter is given preference and a larger share than the sons because she is not in a position to go out and earn a living, as it says: ‘The entire glory of the daughter of the king is on the inside.‘ [Ps. 45:14]. A son, on the other hand, can go and earn a living wherever and whenever he wants and is therefore given less.

Meiselman, supra note 5, at 93.

116. Horowitz, supra note 32, at 392. “[F]emale children that you may have from me, if they became orphans in my house, shall be supported from my property until they be married.”

117. Id. at 392. See supra notes 87-94 and accompanying text for a discussion of dowry.

118. Id.

119. Id.

120. Id.

121. Id. at 393-94.

122. See supra note 43 for definition.

123. Horowitz, supra note 32, at 394.

124. Id.

125. Priesand, supra note 3, at 30.

126. Id. at 30-31. In July 1845, the Conference of the Rabbis of Germany in Frankfort am Main declared:

One of the marked achievements of the Reform movement has been the change in the status of women. According to the Talmud and the Rabbinic Code, woman can take no part in public religious functions, but this Conference declares that woman has the same obligations as man to participate from youth up in the instruction of Judaism and in the public services and that the custom not to include women in the number of individuals necessary for the conducting of a public service (a minyan) is only a custom and has no religious basis.

Report of Committee on Ordination of Women, CCAR Yearbook 91 (1956)Google Scholar. Furthermore, in 1846, the Breslau Conference granted total equality to women:

The halachic [legal] position of women must undergo a change, and it is hoped that all members will be unanimous on that subject. … [Jewish women] have received assurances of their capabilities for emancipation, without, however, being indeed permitted to become emancipated. It is useless to argue why the religious situation of women has become impaired. … To be sure, according to their viewpoint, the rabbis were absolutely right in systematically excluding the female sex from a significant part of religious duties and rights, and the poor woman could not complain about being denied exalted spiritual blessings, for it was believed that God himself had pronounced the damning verdict over her. In the face of so many offending slights in civic life, she could not even complain about the fact that the house of God was as good as closed to her, that she had to beg the rabbi's permission for the daily expression of her Israelitish faith, as one begs for alms. She was permitted a share neither in religious instruction nor in certain sacred parental duties. The execution of sacred acts was now permitted, now forbidden to her; and finally, though the man's daily benediction for the good fortune of not having become a woman, she had to experience the most bitter offense in the very house of God. And yet, all this appears most mild when compared to the conferences of a Christian Council in the Middle Ages, debating whether a woman had a soul at all!

For our religious consciousness … it is a sacred duty to express most emphatically the complete religious equality of the female sex. Life, which is stronger than all theory, has indeed achieved quite a bit in this regard; however, a great deal is still lacking for the achievement of absolute equality, and even the little that has occurred already is still devoid of all halachic strength. It is thus our task to pronounce the equality of religious privileges and obligations of women in so far as this is possible. We have exactly the same right to do this as the synod under R. Gershom, eight hundred years ago, which also introduced new religious decrees in favor of the female sex. …

Esteemed gentlemen, the Committee herewith submits the following proposals for your examination: The Rabbinical Conference shall declare the female sex as religiously equal with the male, in its obligations and rights, and pronounce accordingly as halachic:

1. That women must observe all mitzvot, even though they pertain to a certain time, in so far as these mitzvot have any strength and vigor at all for our religious consciousness;

2. That the female sex has to fulfill all obligations toward children in the same manner as the male;

3. That neither the husband nor the father has the right to absolve a religiously mature daughter or wife from her vow;

4. That from now on, the benediction shelo assani ishah (who has not made me a woman), which was the basis for the religious prejudice against women, shall be abolished;

5. That the female sex shall, from earliest youth, be obligated to participate in religious instruction and public worship, and in the latter respect also be counted in a minyan; and finally,

6. That the religious coming of age for both sexes begin with the age of thirteen.

Plaut, W., The Rise of Reform Judaism 253–55 (1963)Google Scholar, cited in Priesand, supra note 3, at 31-32.

127. Chused, , Married Women's Property Law: 1800-1850, 71 Geo. L.J. 1359, 1386 (1983)Google Scholar [hereinafter Chused]. Coverture refers to the legal status of the woman once she becomes married. Several centuries later, Sir William Blackstone reemphasized the condition in his Commentaries:

[T]he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of her husband: under whose wing, protection and cover, she performs everything; and is therefore called in our law-french a femme covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Blackstone, W., 1 Commentaries on the Laws of England 430 (Oxford 1765)Google Scholar, cited in Ely, , Book Review, 31 Ucla L. Rev. 294, 295Google Scholar (reviewing Basch, N., In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (1982)Google Scholar [hereinafter Ely].

128. The inferior status of married women has its roots in both the religious and metaphysical concepts perpetuated by the Western culture. The Old and New Testaments often portrayed women as having a subordinate status, while the doctrine of marital unity was likely derived from the concept of the unity of the flesh. Basch, supra note 5, at 19.

129. See, e.g., Thaler v. Thaler, N.Y. Journal 14 (1977) (at common law, “the husband and wife were one and the husband was one. …”); Basch, supra note 5, at 15.

130. Ely, supra note 127, at 295.

131. Chused, supra note 127, at 1386; Ely, supra note 127, at 296. A husband whose wife possessed property and gave birth to a child during their marriage, gained a “tenancy by the curtesy.” This gave the husband a life estate in his wife's property. When the child was born, the curtesy was combined with the jure uroxis estate, resulting in a delay of the return of the land to the wife's heirs until after the husband's demise. Chused, R., A Modern Approach to Property 300 (1978)Google Scholar.

132. Chused, supra note 131, at 300; Ely, supra note 127, at 296.

133. Id.

134. Id. The ecclesiastical courts made an exception to the “no divorce” rule by granting the wife a separation from bed and board, particularly in cases of adultery. Basch, supra note 5, at 20.

In summary, the husband had the following common law rights:

* May sue on behalf of his wife without her consent

* Owns wife's personalty outright

* Can reduce wife's choses in action to his possession

* Controls management of wife's realty

* May charge wife's realty, but may not devise it

* Responsible for wife's necessaries

* Responsible for maintenance and custody of children

* Responsible for wife's debts incurred before marriage

* Cannot alienate wife's dower without her consent (cannot alienate his own realty without her consent);

* Entitled to tenancy in all of wife's realty for as long as he lives

* At his death, wife's realty reverts to her family if there are no living children Basch, supra note 5, at 54-55.

135. Ely, supra note 127, at 296.

136. In Sharpe v. Buckstaff, 99 Wis. 2d 114, at 117-18, 299 N.W.2d 219, at 221 (1981), the court discussed the common law of “necessaries”:

The husband is under legal obligations to support his wife, and nothing but wrongful conduct on her part can free him from such obligation. If he fails to provide her with suitable and proper necessaries, any third person who does provide her therewith, may maintain an action against him for the same. And, in general, we may say, that necessaries are such articles of food, or apparel, or medicine, or such medical attendance and nursing, or such provided means of locomotion, or provided habitation and furniture, or such provision for her protection in society, and the like, as the husband, considering his ability and standing, ought to furnish to his wife for her sustenance, and the preservation of her health and comfort.

137. Chused, supra note 127, at 1386; Ely, supra note 127, at 296; Basch, supra note 5, at 20.

138. Basch, supra note 5, at 55.

139. Chused, supra note 131, at 300.

140. Id. at 300-01.

141. Id. at 301. Compare with the definition of “curtesy”:

The estate to which by common law a man is entitled, on the death of his wife, in the lands or tenements of which she was seised in possession in fee-simple or in tail during her coverture, provided that they have had lawful issue born alive which might have been capable of inheriting the estate. It is a freehold estate for the term of his natural life.”

Black's Law Dictionary 459 (5th ed. 1969)Google Scholar.

142. Meiselman, supra note 5, at 85.

143. Id. at 86.

144. Id. In summary, the wife had the following rights and duties at common law:

* Entitled to support

* Cannot contract except for necessaries and as her husband's agent

* Cannot sue or be sued in her own name

* Cannot make a will except with her husband's consent

* Cannot alienate her realty except with her husband's consent

* Entitled to tenancy in one-third of husband's realty as long as she does not remarry

* Entitled to her paraphernalia

* May lose custody of children by husband's will

Basch, supra note 5, at 54-55.

145. The court of equity was a concept born in thirteenth century England whose basis was fairness as opposed to legal strictness. Equity offered special remedies which were not available in the court of law, and filled in the gaps created by the stringency of the common law.

Basch, supra note 5, at 20-21.

146. Ely, supra note 127, at 296.

147. Basch, supra note 5, at 72-73.

148. Id. at 73. See also note 160 for further discussion on trusts.

149. Basch, supra note 5, at 73. One of the results of coverture was that a husband and wife could not contract with one another under normal circumstances.

150. Basch, supra note 5, at 21.

151. Ely, supra note 127, at 296.

152. Basch, supra note 5, at 21.

153. Ely, supra note 127, at 296.

154. Id.

155. Id.

156. See, e.g., Basch, supra note 5, at 22-23; Chused, supra note 127, at 1389.

157. Basch, supra note 5, at 22. Interestingly, Puritan Connecticut and Quaker Pennsylvania, both representative of religious dissention from the English view, did not provide such common law protections as conveyancing and dower to wives.

158. Id.

159. Id. at 72, 78. The trust originally was a device most commonly used by parents for their daughter, entitling her to a life interest with no powers. Basch describes the development as follows:

A conveys property to B, who administers it on behalf of C. A is the settlor or trustor, B the guardian or trustee, and C the beneficiary or cestui que trust, the one who trusts. B's ownership is considered legal while C's is considered equitable. … [A] trust allowed a father to endow his daughter with property while keeping it out of the hands of his son-in-law by conveying nominal ownership to a trusted friend, who administered it on behalf of the daughter. A woman with assets and with the permission of her intended husband could create a similar trust for herself in anticipation of marriage. … [N]ext … it became possible to reserve to the woman the powers that ordinarily went to the trustee, thereby making the trust function as a kind of legal fiction.

Later, courts in some jurisdictions completely eliminated the use of the trust by married women, and allowed the creation of a separate estate without the need of conveying property to a third-party trustee. See, e.g., Bradish v. Gibbs, 8 Johns. Ch. 523 (1818) (holding that creation of a trust, even one that functioned as a legal fiction, was not necessary).

160. Chused, supra note 127, at 1393. For example, only some colonies awarded dower in equitable estates. Some states awarded dower from land held during coverture, while others awarded it only in land held at death.

161. Id. at 1394-95. This elective scheme did not always allow the widow to take her share prior to the payment of her husband's debts.

162. Id. at 1395.

163. Id.

164. Id.

165. Id. at 1392.

166. Id. at 1389.

167. Id. at 1390.

168. Id. at 1398-99. Alabama seems to be the only other state which adopted similar legislation.

169. Basch, supra note 5, at 27.

170. Id.

171. Id.

172. Id. at 27-28.

173. Act of Apr. 7, 1848, ch. 200, 1848 N.Y. Laws 307, cited in Chused, supra note 127, at 1410 n.266.

174. Id. at 1410-11 n.266. The full act read as follows:

AN ACT for the more effectual protection of the property of married women. Passed April 7, 1848[qc]

The People of the State of New York, represented in Senate and Assembly do enact as follows:

1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and single property, as if she were a single female.

2. The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.

3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.

5. All contract made between persons in contemplation of marriage shall remain in full force after such marriage takes place.

175. Basch, supra note 5, at 28.

176. Chused, supra note 127, at 1399. The states included Maryland, Connecticut, Iowa, Kentucky, Indiana, Vermont, North Carolina, and Tennessee.

177. Id. at 1399.

178. Id.

179. Id. at 1400.

180. Id.

181. Id.

182. Id.

183. See, e.g., Basch, supra note 5, at 225 (“[m]any of the changes wrought by the New York Legislature were illusory”).

184. Basch, supra note 5, at 200, 202-03. Basch argues that the judiciary accomplished the limitation of the statutes in three ways:

First, by declaring sections unconstitutional and void, they narrowed the applicability of the statutes. Second, by relying on equity precedents that required the delineation of the married woman's estate to be clear and unambiguous, they limited the number of estates affected. Third, and most important, by professing their faith in the propriety and the desirability of the old common law fiction of marital unity, and by applying that fiction to the countless situations the statutes did not spell out, they eviscerated the spirit and intent of the legislation.

Id. at 202-03.

See, e.g., White v. White, 5 Barb. 474, 477-79 (1849) (statute was not applicable to wife who had been married in 1819 and had inherited realty in 1828, and could not prevent husband from interfering with her rents and profits, because husband's rights were vested). Basch, supra note 5, at 204.

185. Id.

186. See, e.g., Switzer v. Valentine, 10 How. Pr. 109 (N.Y. Super. Ct. 1854) (assets whose ownership was uncertain were treated as property of the husband). Ely, supra note 127, at 299 n.25.

187. Basch, supra note 5, at 213.

188. Id. at 213-14. See, e.g., Van Allen v. Humphrey, 15 Barb. 555, 559 (1853) ([i]n order to carry out the spirit of this statute, it will become necessary for the courts to adopt, to its full extent, the equity rule that a wife having a separate estate, shall be taken to have bound it to the payment of debts contracted by her”). Not all courts were of the same opinion.

189. Id. at 222.

190. Id. at 232.

191. Id.

192. See supra notes 61-68 and accompanying text for discussion of melog assets of the Jewish wife.

193. See supra notes 146-52 and 169-79 and accompanying text for a discussion of the recognition of the common law wife's separate estate by the courts of equity, and a similar recognition by the married women's property acts of the 1800s.

194. See supra note 86 and accompanying text for discussion of trusts created by women in Jewish law, and the fact that Talmudists frowned upon them.

195. See supra notes 69-76 and accompanying text for discussion of “iron flock” assets of the Jewish wife.

196. See supra notes 130-35 and accompanying text for discussion of the Anglo-American wife's rights in property she brought to the marriage.

197. See supra notes 128-35 and accompanying text for discussion of the concept of coverture and the minimal rights afforded to common law wives.

198. See supra notes 81, 137, and 130 and accompanying text.

199. See supra notes 48, 81, and 137 and accompanying text, which demonstrate that both Jewish law and Anglo-American common law placed the same obligations on the husband to provide his wife with the basic necessities of life.

200. See supra notes 66-68 and 82-86 and accompanying text for further discussion.

201. See supra note 69 and accompanying text. This “statutory portion” included the ketubah and the “iron flock” assets which the wife brought to the marriage as dowry.

202. Meiselman argues that Jewish women were actually better off in the inheritance scheme because their claim preceded all other creditors and heirs. “The choice,” he claims “represents a realistic approach to the needs of women. The [Jewish] law recognizes that it is easier and preferable for men to go out and earn a living than for women.” Supra note 5, at 90-91.

Many women today would take offense at Meiselman's claim, particularly because in our society it has become increasingly easy for women to obtain jobs to support themselves. A second problem with his argument is the assumption that Jewish widows benefitted from their position as creditors vis-a-vis their husbands' estates. Although in some situations this could have proven advantageous, many Jewish women would have preferred to stand in line with the other heirs, particularly when a larger estate was involved. Inequity also stemmed from the fact that women were limited to the portion of the estate to which they were statutorily entitled, and depended on their husbands' and fathers' good will to assign them more than their statutory share. See supra notes 110-13 and 121-24 and accompanying text for further discussion of Jewish women's inheritance rights.

203. Blackstone, W., Commentaries on the Laws of England in Four Books (Cooley, T. ed. 1899)Google Scholarcited in Basch, supra note 5, at 48.

204. Id. at 48.

205. Id.

206. Id.

207. Id.

208. See supra notes 127-29 and accompanying text for a discussion of the common law doctrine of coverture and its effect on Anglo-American women.

209. See supra note 50 for an example of a typical text of the ketubah.