TIP#494 - WOMEN'S RIGHTS IN VIRGINIA AND KENTUCKY Kentucky formed many of its laws and opinions based on Virginia as is well known. And, as in Virginia, women were originally denied full legal status. Women couldn't execute a will nor could they be involved in any legal contract without her husband's permission. Once a woman married, all of her property came under the control of her new husband. And of course, women couldn't vote. Let's take a little closer look. A woman's marital status was the basis of many of her legal status and her privileges. While single, she was referred to as a feme sole. As such she had the same legal rights as a man. But alas, when she married, everything changed. Whereas when she was single she could enter into contracts, was allowed to sue, could dispose of her property any way she wanted to, could make wills. But at marriage, she became a feme covert and the rules of the game changed. Her husband now controlled every legal matter as it concerned the wife. If hubby wanted to sell her property, clothes, jewelry, livestock, etc. - he could and she would have no say in it. If she inherited property from her family - he had control over it and could sell or keep it. Back in Virginia, the House of Burgess made an attempt to protect the women's rights a little better. They discussed her property rights and an act was passed that a man must obtain his wife's written permission in order to sell or transfer her property, primarily land. Thus came the practice of "examining privately, apart from her husband, by the justices, anything dealing with the selling of her property. She had to agree to the sale without undue pressure by her husband. One can find this clause in almost every deed in early Kentucky. This can be a definite clue that some of her land was involved in the sale! If this clause appeared at the end of the deed, it would indicate that some or all of the property being sold was hers, not his. If the clause did not appear, his land was being sold. Provision was made in Virginia also that if she was disabled or ill and unable to come in at the recording of the deed, a justice had to go to here and interrogate her there. The next law in Virginia that made a dramatic change was passed in 1748. It handled an old 1662 Virginia law that ordered that if a man died intestate, the widow received a third of his estate. The 1748 law specified the wife's dower interest in different types of property in addition to land. This guaranteed her a life interest of one-third of not only the land but slaves and personal property. She was allowed now to contest the will and if she did, the justices would appoint a commission to divide the estate to be sure that she got her third. Where there is a will there is a way however, and although men could no longer dispose of his wife's property without her written permission, he often found a way around the law. The law didn't say he couldn't USE the property. The law still allowed him to pocket any rents received from renting out the land. At the wife's death the husband automatically controlled the land and if they had children, he became a tenant for life. At his death, the land would go to the children. He was also allowed to appoint guardians for his children and he could apprentice them out to learn a trade while his wife was still alive. I am sure there were times when children were apprenticed out by fathers who had a lot of children under foot with his wife, the mother, protesting loudly but powerless to do anything about it! (See Speth and Hirsch, 1983 for various discussions on the above.) What about divorce? It happened then as it does now but the rules of the game were a little different. In Virginia it as quite difficult to get a divorce. It was hard to arrange the details and was financially difficult. It was also thought of as the English ancestors did - only allowable by a church court. Since Virginia had no ecclesiastical courts, and it left Virginians in a difficult situation. Occasionally, in Virginia, a county court would grant divorces but were reluctant to do so on religious reasons. They granted them only in extreme cases which involved unusual circumstances. In 1827, after Kentucky had already reached statehood, the Virginia General Assembly authorized the superior courts to grant divorced from "bed and board" only in the circumstances of cruelty, adultery or bodily harm. The wife had to give up any claims on her husband and he gave up rights to her property. However - the ex husband and wife were not allowed to remarry. The only exception to this was in the matter of bigamy and idiocy or impotency at the time of marriage - these individuals were granted a complete divorce which allowed remarriage. (Lebsock 1984). Virginia women did not always follow the law. By Virginia law when a man died intestate, the eldest son was to receive the largest bulk of the estate. Then an equal share of his property was divided among the children whether male or female. The widow received her third and at her death what remained went back to the eldest son. But in many wills in the early to mid 1700's in Virginia, it can be found that different provisions were made. Wives were often named as the executors, and often remarried shortly after the death of their spouse. Daughters were allowed to inherit from their father also. From about 1850 on Virginia allowed women rather than their husbands to own and control personal and real property they had inherited. Now we come to Kentucky. In the earliest days property laws reference women were "especially repressive". All personal property, rents and profits from the property went automatically to the husband. (Stanton, 1867). In 1838, the Kentucky General Assembly allowed a separate estate for women, including married women. It became legal for bank stock and other stocks to be transferred to a woman for her own use. The property could not be transferred, could not be liable to vest in her husband, and it was not subject to his debts. She could dispose of her property in her will if she was single, or with her husband's consent if married. By 1846 another act was passed to protect the property rights of married women. By this law, the husband did not acquire an interest in his wife's real estate, chattels or slaves which she owned at the time of their marriage (or acquired later). But, the husband was still allowed to rent out his wife's property for a period of not more than three years and to hire out the slaves for not more than one year. (Stanton 1867). In 1866 another law was passed which improved the lives of married women a little more; she was allowed to act as a feme sole under certain conditions. If her husband abandoned her, or absented himself from the home, if he moved to another state or was confined to prison for more than a year, she could act as a feme sole. By 1894, women were allowed to have a separate estate, were freed from the debts, liabilities or control of her husband. They could buy and sell property, make contracts, bring law suits, and could be sued. Divorces in Kentucky was pretty well the same as in most states at the time. In 1809 the Kentucky General Assembly stated that a man could obtain a divorce from his wife if she left his bed and board for three years, if she moved in with another man or if she was found guilty of a felony. The wife could be granted a divorce if her abandoned her for two years, if he was found guilty of adultery, was convicted of a felony, or where his treatment to her was "so cruel, barbarous and inhuman as actually to endanger her life. (Littel 1822). The division of the property relied on whose fault the divorce was. In 1820, Circuit Courts were empowered to grant divorces on the grounds shown in the 1809 law. (This was always allowed by the Circuit Court but clarified at this time.). Divorce later was granted for cruel and inhuman treatment "as to indicate a settled aversion to the spouse which would destroy permanently one's peace and happiness". (Sears 1989). You will find this term used in almost all the divorces found in Kentucky, the lawyer used the exact terms as the law stated to be sure to "do it right." In 1894 a new Kentucky statute was passed which provided for divorce to the wife in cases of abandonment for one year, habitual drunkenness for not less than one year, cruel beating or injury, attempt at injury or probably danger to her life. Husbands were allowed divorces for abandonment for one year, habitual drunkenness for not less than one year, adultery by the wife of such lewd, lascivious behavior on her part as proves her to be unchaste without actual proof of an act of adultery. (Barbour and Carroll, 1894). Under these laws, the offending party could not remarry as long as the previous spouse lived. (Littell and Swigers 1822). By 1873, they could remarry but only one divorce was permitted to any person except when the person was found not at fault for the divorce. (Bullock and Johnson, 1873). The divorce restored the wife's right to the possession of her land immediately. Divorce records are found in the Circuit Court records, and early divorces are also recorded in the Acts of Kentucky as late as 1850. The inheritance laws were similar to Virginia. The woman inherited her 1/3rd dower for life if there was no will. If there was no other living relatives, she inherited the entire estate. She could make her own will if she had a separate estate received by gift or inheritance. The husband received his wife's entire estate if there were children. If there were no children, he inherited no real property but all the personal property. Kentucky was the only state that did not permit a married woman to will property that would otherwise descend to her husband's heirs. (Stanton 1867). She could only make a will to devise her own separate estate property. In 1894 a statute was enacted that allowed a married woman of sound mind and over age 21 to dispose of her estate by her last will and testament. Widows could make wills and often did. Some widow chose to relinquish the dower after the death of her spouse and lived in the household of one of her children (normally the oldest son or daughter). Women in Kentucky could also transfer property. A man didn't need his wife's signature when he bought property, but her consent was required when he disposed of any property (note Virginia law above). Finally, in early Virginia and Kentucky law, the marriage bond could not be arranged by the bride or her mother (Conrad 1988). A male relative of the bride and groom would then obtain the marriage license from the County Clerk based on the bond that had been executed. The bond was normally posted by the groom and a male kinsman of the bride-to-be, most often her brother. Pre-nuptial arrangement were know, though only the wealthiest seemed to have used this. While the woman was still a feme sole, a widow could enter into a contract with the prospective groom to protect her property. These agreements, as early as 1842, did not bar a decree for alimony in case of divorce. (Loughborough 1842). I am totally indebted to Roseann Reinemuth Hogan for all her work on this topic and presented in her marvelous book "Kentucky Ancestry", A Guide to Genealogical and Historical Research. If you do not have a copy of Roseann's book, please find a copy! It is published by Ancestry, P O Box 476, Salt Lake City UT 84110, (c) 1992. Roseann was extremely helpful to me when I first established KYRESEARCH many years ago and allowed me to draw upon her work in this publication. I am thankful for all the work she has done. (c) Copyright 10 June 2004, Sandra K.Gorin, All Rights Reserved. Colonel Sandi Gorin SCKY Links: http://www.public.asu.edu/~moore/Gorin.html Sandi's Puzzlers: http://freepages.genealogy.rootsweb.com/~gensoup/gorin/puz.html Gorin Publishing: http://ggpublishing.tripod.com/