Marriage Settlements in England and Wales
Marriage Settlements in England and Wales
In the early Middle Ages a marriage for the majority of property owning people, did not imply a ceremony in church, but a private contract or property exchange that also provided some financial protection to the woman in case her husband died or abandoned her.
Although the church gained control of many aspects of marriage law in the 13th century, a witnessed exchange of promises followed by cohabitation continued to form a legal marriage in the eyes of the civil lawyers, and it was not until 1754 that a ceremony in church became central to the legal concept of marriage. Only 83 years later, in 1837, that idea was abandoned and a civil marriage again became possible.
Prior to the Married Woman's Property Act in 1882, under common law a woman's legal identity during her marriage was subsumed into that of her husband. That coverage, called her "coverture", meant that whatever she brought into marriage became his. In theory she received in return her maintenance, but she had no legal remedy if her husband failed to meet his obligations. However, in the propertied classes any of her unexpired leases would revert to her if she survived him and he could only dispose of her freeholds with her permission. Whilst married she could not sue or be sued (except in conjunction with her husband) and her only consolation was that if she ran up debts that her husband could not pay, it was he and not she who went to the debtors' prison.
It is no wonder that parents in quite ordinary families, if they lived long enough, attempted to safeguard their daughters' property rights and futures by written bonds or settlements, something which many widows also did prior to a second marriage. It is a mistake, therefore, to think that before the 1882 Act the position of all married women was entirely circumscribed and that all were completely dependent on the goodwill of their husbands.
Dower or Thirds
From at least the 12th century the common law of England had sought to protect the widow. By common law a third of a man's estate had to pass at his death to his widow for her lifetime or until she married again. This right to her "thirds" or "dower" was expressly recognised by Magna Carta in 1215. If the man held land from a manor, the provision for the widow was often more generous, though that provision, known as "freebench", varied greatly from manor to manor according to its custom. Sometimes as much as a half or even the whole of the property was reserved for her use.
The common law rights, limiting the disposal that a man might make by will and protecting the widow, had largely fallen by the wayside by the 16th century except in the Province of York and in Wales where they survived until the 1690s. In the City of London this protection remained until abolished in 1726.
If the husband left no will, however, the Statute of Distributions in 1670 confirmed that a third of the property should go to the widow and the remainder to the children, but if there were no children she would receive a half and the other half would go to his next of kin. The church courts, although not technically involved with the land that by custom went to the eldest son, would try to make sure that adequate provision was made from the personal estate for the widow's remaining years and for the other children. With the increase in the value of land in the 18th century, out of proportion to that of household good, comparable provision for daughters and younger sons became much more difficult. It is, however, unwise to generalise too much and many wills show a division of land between all the sons and sometimes amongst the daughters as well.
When Joseph Gregory of Bendish, yeoman, sold a group of lands in St Pauls Walden to Gyles Thornton Heysham, of Stagenhow, for £317 10s 0d in 1735, his wife Elizabeth did not join in the deed of sale. It was recognised that if she survived her husband she would be entitled to her thirds and dower and so it was agreed that a third of the money involved should be retained by Gyles Thornton Heysham as an indemnity against any claim from her. Heysham agreed to pay the couple interest at four per cent yearly on that third during their lives. If Elizabeth died first, Heysham was to pay the balance to Joseph within three months, but if she outlived her husband then she was to receive the third in lieu of dower. All this was set out in the deed; it was an arrangement that would have satisfied all parties.
Portions and Jointures
Until the end of the 19th century brides from all spectrums of the propertied classes were expected to bring a dowry of some land or at least a sum of cash to their marriage. The idea survived into the mid-20th century in the form of trousseaus and bottom drawers. In ordinary families, this cash sum, called a "portion", would be added to the portion that the man himself brought and with which the couple set up home. The arrangement would be made by a properly drawn up, signed and witnessed, bond or deed.
When in September 1677, for instance, it was agreed that John Collyson of Pirton, yeoman, should marry Elizabeth, the daughter of Michael Ansell the Elder, yeoman, Michael "in consideration of a marriage shortly hereafter by God's grace to be had and solemnized" settled on the couple as his daughter's jointure some seven and a half acres of arable land in Pirton, four acres of which were in the common fields and the remainder freehold. The property was to be for the benefit of both the couple and their heirs and, as a result, Elizabeth would have to be a party to any future disposition of that land.
Slightly more elaborate arrangements were made when John Goodwyn of Baldock, yeoman, married Anne Godfrey of Willian, yeoman, in 1695. Edward Godfrey paid his future son-in-law the sum of £400 as his daughter's jointure, but the settlement also set out the property that John's father and mother held and which would pass on their deaths to John and his wife for their and their children's benefit. This included three cottages in Brad Street, Baldock, and eleven acres of land in Willian and Clothall.
The payment of the more flexible jointure, when secured by a settlement, in due course came to replace the woman's right to their thirds. In church law a settlement nullified a right to thirds, but a settlement offered greater security. A settlement could be sued for like any other debt (and a widow who was executrix would make sure that she claimed it), whereas the thirds were only allocated after the debts had been paid.
An interesting example is that of William Lucas of Hitchin, carpenter, who just after his marriage to Mary Blow, the daughter of Thomas Blow, of Stevenage, carpenter, agreed by settlement dated 30 January 1755 to put into the hands of his father-in-law and Joseph Ewesdin the maltings in Bancroft Street, Hitchin, and other property that he had inherited from his grandfather Simon Lucas, and in which he and his wife lived, for the nominal sum of five shillings.
These arrangements were to make "a competent jointure" for Mary Blow (who could not sign her name) should she survive him, as well as some provision for their children, and were to be "in recompence barr and satisfaction of all dower and thirds which she hath ... or may claim". Such an arrangement in a trading or commercial family, of course, gave the couple some protection from complete loss should the husband be forced into bankruptcy.
Dr Amy Erickson, in her ground-breaking book Women and property in early modern England (1993), identified three types of marriage settlement found mentioned in probate accounts.
The first of these was not concerned with thirds or dower but was a simple bond to secure a lump sum on the death of the husband. This sum was either equal to that which the woman had brought to the marriage as her portion, or was the cash equivalent when that portion had been in land. Joseph Margetts Pierson of Hitchin, grocer and tallow chandler, entered into a bond with a local gentleman and a clergyman on 18 April 1765, prior to his marriage to Mary Squire, promising that if she survived him, his executors would pay her £500 within six months of his death. The bond, as always in these cases, was for double this amount and could be sued for in case of default.
The second type of settlement was a bond by which a man guaranteed to pay the portions of his wife's children by a former marriage. These were equally common and clearly needed, as the property she brought to her second husband would have incorporated that left by her first husband and would otherwise have been lost in her coverture (and subject to her second husband's debts, etc).
These two types of settlement were found in some ten per cent of surviving probate accounts of married men, a much higher figure and at a much lower social level than had previously been thought. A quarter of them were for less than £13, some in goods rather than cash.
The third type of marriage settlement was less common amongst ordinary families and involved paying a third party (effectively a trustee) a sum of money for the wife's use. This might be done in conjunction with, or as an alternative to, allowing her to make a will during the lifetime of her husband. The creation of a "separate estate", a term carefully not used in the documentation at the time, seems to have been done only where larger amounts of property were at stake. In these cases the fathers of spinsters who were heiresses, and more frequently widows on their own account, put their property in the hands of trustees prior to marriage, not only so that their husbands had no power over it, but also so that they could draw an income from it and ensure its future disposition according to their wishes.
These latter arrangements to protect a married woman's property were supported by the Court of Chancery from as early as 1620, and a considerable number of marriage settlement cases are found argued there.
In the first half of the 17th century lawyers began to look for ways in which to preserve the landholdings of their richer clients for future generations and to reduce the powers of future children and grandchildren to dispose of them by sale or bequest.
They developed a system that came to be called "strict settlement" by which the property was effectively placed in the hands of trustees who had powers to appoint their own successors. The real owners thus became life-tenants, receiving an income from the rents and profits of the property during their lifetimes, but quite unable to sell, mortgage or bequeath it. These settlements differ from the simple ones made by ordinary families in the entails (to as yet unborn children and grandchildren) that they created and in their great length and complexity. In common parlance the land was "entailed" or held in trust.
Arrangements of this kind became commonplace in large landowning families from the middle of the 17th century until after the First World War. The settlement, providing an income for all future children, would normally include the provision of annuities or marriage portions for future daughters and widows, making allowance for all kinds of eventualities.
Additional land acquired by the life-tenant during his lifetime could, of course, be bequeathed, as might the personal goods, if these were not part of the settlement, but otherwise it was difficult to reward one child in preference to another and impossible to remove a daughter's annuity if she married against her father's wishes. It is worth noting that it was possible for household articles to be left to the next heir as "heirlooms" and that the courts recognised their position as attached to the freehold, like "fixtures and fittings" today, which could not be left by will or sold.
In the 18th century this type of settlement took much greater care of the property rights of the wife and many contracts drawn up at marriage began to specify an annual allowance of "pin money" which she was to receive and which was at her exclusive disposal (Georgiana, Duchess of Devonshire, had pin money of £4,000 a year). These arrangements, however, only affected the larger landowners and were not used by ordinary families. Their terms could normally only be altered when the tenant "in tail" came of age and with the consent of all the trustees or by Private Act of Parliament.
Records of Settlements
Dr Erickson found evidence of marriage settlements (and one or two filed examples) in probate accounts and in the disputes about them in the Court of Chancery and the church courts. They being private arrangements, perhaps the majority unfortunately do not survive. However, where they involved land they survive amongst title deeds and will be registered like other deeds relating to a house or land.
Settlements that restricted the freedom to dispose of land or, conversely, gave powers for its disposal, may be cited in wills. In these cases, even if the deed itself has not survived, its date and the names of the parties involved are usually given in the will. This may be a valuable clue to the date of marriage and the maiden name of the wife.
Settlements of ordinary people may sometimes be found amongst the family papers of their trustees, and the carefully preserved strict settlements of wealthier families are usually found with their other family muniments. In view of their length and complexity, however, any abstract of title compiled in the past will be a great deal easier to consult in the first instance.
Amy Louise Erickson's wide-ranging Women and property in early modern England (Routledge, 1993) [not in FHL] deals with the period between 1580 and 1720 and corrects many impressions given in Lawrence Stone, The family, sex and marriage in England 1500-1800 (Weidenfeld & Nicolson, 1977; Penguin Books, 1990) [not in FHL] who wrote mainly about the wealthier classes and whose argument that people married primarily for economic reasons has been largely rejected by recent historians. The subject of strict settlement was first explored by Barbara English and John Saville in Strict settlement: a guide for historians (University of Hull, Occasional Papers in Economic and Social History, no. 10, 1983) [FHL 942 R2eb] and by Lloyd Bonfield in Marriage settlements, 1601-1740; the adoption of the strict settlement (Cambridge University Press, 1983) [FHL 942 P3bL].
[Adapted from Anthony Camp's article '"In consideration of a marriage shortly hereafter to be solemnized ...": the marriage settlement' in Family Tree Magazine (UK), vol. 19 no. 5 (March 2003) pages 14-16].