WHETHER OR NOT THE DOCTRINE OF COVERTURE HAS ALWAYS BEEN A
FICTION AND IS NOW RAPIDLY BEING DISPELLED.
The sentiment that the doctrine of coverture has always been a fiction, and it is now rapidly being
dispelled is true.
The common law doctrine of coverture was a theory that held that spouses were a single entity,
with the husband being the head of the marriage. It was based on the idea that women’s identity
was subsumed by her husband upon marriage, but it did not fit into the reality as women could
work and become financially independent and could set up trust and antenuptial agreement which
led to a different perception of kinds of marriages for different women. By the nineteenth century
legislations had started to recognize the property of married women.1 In Malawi our constitution
under section 22 (1) (ii) of the Constitution provides that women have rights to acquire and
maintain rights in property, independently or in association with others, regardless of their marital
status.2
The doctrine was used to justify the subordination of women and denied women of their rights as
it failed to reflect the reality of married life. As a woman, she had no voice to act by herself
without the husband as a result it encouraged the existence of male dominance which affected the
dynamic of marital relationships between men and women where women were considered as
possession of men leading to unequal power and men exerted complete authority over women.3
This doctrine ignored the fact that both husbands and wives have different interests, rights, and
responsibilities. The case of Cybyske v Independent School District No 196 portrayed
employment discrimination based on marital status whereby a teacher was not hired as a
permanent teacher because of her husband’s vocal pro-teacher stance as a school board member.4
It also denied women the right to own property as a married Basch, Norma, “Invisible Women:
1 Basch, Norma, “Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America,”
Feminist Studies 5 (1979): 346–66.
2 The Constitution of the Republic of Malawi of 1994
3 Lawvs. (2023). Is Consent for Sexual Intercourse Implied between Married Couples.
4 . Cybyske v. Independent School District No. 196, 347 N.W. 2d 256 (Minn. 1984
The Legal Fiction of Marital Unity in Nineteenth-Century America,” Feminist Studies 5 (1979):
346–66.
woman became a husband property after marriage, she could not own property in her own name.
The effect of the doctrine of coverture can be traced in Malawi through the patrilineal system
whereby the wife is taken as the husband’s property after the payment of lobola. As a result, a
woman is subjected to injustice such as loss of parental right whereby she could not have custody
of her children. Her husband had sole custody of the children, she had no right to make decisions
about the upbringing of the children. This doctrine also denied women of the right of personal
autonomy where women were not allowed to make decisions of their own life including having
sex with the husband. The case of R v Clarence was the first case which included an acceptance
of the rule that a married woman gives implied consent to the act of sexual intercourse. 5It was a
general rule that a husband could not be found of raping his own wife.
With time the doctrine has now been dispelled by changes in the law and societal attitudes. For
example, the case of R v R (1991) removed the legal exemption for rape in marriage in England
and Wales. The decision established that it is a crime for a husband to rape his wife, effectively
abolishing marital rape exemption under common law. The court overturned the rule that a husband
cannot be criminally liable for raping his wife if he has sexual intercourse without her consent.6
The rise of women’s rights movement criticized coverture as oppressive hindering women from
exercising ordinary property rights and entering professions. 7 The introduction of statutes that
protected women’s rights allowed women to own property, marking a significant shift away from
the doctrine of coverture. In United Kingdom the Married Women’s Property Act was introduced
in 1870 to eliminate and reduce the effects of coverture.8 Nineteenth-century courts in the United
States also enforced state Privity examination laws in which married women who wished to sell
5 R v Clarence (1888) 22 QBD 23
6 R v R (1991) 4 All ER 481
7 “The fiction of Unity : A critical Analysis of the doctrine of coverture” by Joanne Conaghan (Feminist
Legal Studies, 2003)
8 "Married Women's Property Acts (United States [1839])". Encyclopadia Britannica.
their property had to be separately examined by a judge outside the presence of her husband and
asked if her husband was pressuring her into signing the document. Such practice helped to protect
married women’s property from their husbands9.
The Family Law act of 1996 of United Kingdom law recognize the separate rights and interest of
husbands and wives, including the right to own property and enter contracts independently. The
introduction of the Convention on the Elimination of all Forms of Discrimination Against
Women was adopted in December 1979 with an effort to eliminate discrimination against women
by holding countries responsible for discrimination that takes place in their territory.10 In Malawi
we have statutes like the Gender Equality Act of 2013 which promotes equality and prohibits
discrimination based on sex or marital status.11
In the modern world today the idea of the doctrine of coverture is no longer tenable. The law
acknowledges the separate rights and interest of husbands and wives and the concept of joint
ownership of property. In other jurisdiction the recognition of gay marriages has also contributed
to the dispelling of the doctrine of unity of husband and wife. It is true that sentiment that the
doctrine of coverture has always been a fiction and is now rapidly being dispelled as the
acknowledgement of women’s rights and the promotion of gender equality has led to a shift away
from this doctrine as the law now recognize separate identities as it was un the case of Mphumeya
v Republic where the court stated that in all customary marriages there is no unity of personality
between spouse. The wife is free to continue to use her maiden name and well as own separate
property from the husband or wife.12
9 "Married Women's Property and Male Coercion: United States Courts and the Privy Examination, 1864–
1887". Project MUSE
10 Discrimination Against Women and the History of CEDAW
11 Gender Equality Act of 2013
12 Mphumeya v Reginam
References
STATUTES
The Constitution of Malawi of 1994
Gender Equality Act of 2013
Married Women’s Property Acts ( United States [1839])
CONVENTION
Convention on the Elimination of all Forms of Discrimination Against Women
CASES
Cybyske v Independent School District No 196, 347 N.W. 2s 256 (Minn. 1984
R v R (1991) 4 All ER 481
R v Clarence (1888) 22 QBD 23
BOOKS
Basch, Norma, “Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century
America,” Feminist Studies 5 (1979): 346-66
“Married Woman’s Property and Male Coercion: United States Courts and the Privity
Examination, 1864-1887”