HUSBAND AND WIFE
A man and woman who are legally married to one
another and are thereby given by law specific
rights and duties resulting from that relationship.
The U.S. legal concept of marriage is
founded in English COMMON LAW.Under com-
mon law, when a man and woman married, they
became a single person in the eyes of the law—
that person being the husband. The duties and
benefits afforded a married woman, as well as
the restrictions on her freedom, reflected this
view. Even today, although the Equal Protection
Clause provides that no state shall “deny to any
person within its jurisdiction the EQUAL PRO-
TECTION of the laws” (U.S. Const. amend. 14,
§ 1), the U.S. Supreme Court has never inter-
preted this to mean that states must treat hus-
bands and wives the same.
There is a strong public policy in favor of
marriage. Because of this, a husband and wife
are not always able to determine their duties and
privileges toward one another; instead, these
rights and responsibilities are set forth by special
legal principles that define the parameters
within which husbands and wives must act.
Support
Under common law, because it was unusual
for a wife to have a job and earn her own money,
a husband was obliged to provide his wife with
“necessaries”—which included food, clothing,
and shelter—but only the necessities he deemed
appropriate. Today, judges have taken the sup-
port obligation further and construed the term
necessary to include any item in furtherance of
an established standard of living.
Most jurisdictions make it a criminal offense
for a spouse to fail to meet a support obligation.
Criminal nonsupport statutes are created to pre-
vent men and women from becoming public
charges and are most frequently applied upon
the dissolution of a marriage when a spouse
does not meet ALIMONY and CHILD SUPPORT
obligations. Actions for support are rarely initi-
ated by men although today an equal obligation
of support applies.
Property
Historically, wives were at a disadvantage
as property owners. At common law, when a
woman married, her personal possessions were
considered to be the property of her husband. In
addition, the husband was entitled to use the
land she owned or subsequently inherited, and
to retain rents and profits obtained from it. A
married woman’s right to own property was
not incorporated into U.S. law until the mid-
nineteenth century, with the Married Women’s
Property Acts. These laws allowed husbands to
permit their spouses to own separate property.
Women were also granted the right to enter con-
tracts, sell land, write wills, sue and be sued,
work without their husband’s permission and
keep their earnings, and in certain jurisdictions
sue for injuries caused by their husbands.
Ordinarily, questions of who owns what
property are brought to court only when a cou-
ple is obtaining a DIVORCE. Courts are otherwise
reluctant to become involved in property dis-
putes between a husband and wife. Various sys-
tems exist in the United States to determine who
owns property in a marriage: a majority of states
recognize separate property, whereas some
adhere to COMMUNITY PROPERTY or equitable
distribution doctrines.
The rule in separate-property states is that
each person owns whatever items are in his or
her name. In these states, various types of joint
spousal ownership are recognized. A TENANCY
BY THE ENTIRETY is a form of joint ownership
whereby the husband and wife own all the prop-
erty together. This type of arrangement ordinar-
ily applies to real estate. In a tenancy by the
entirety, neither spouse can sell the property or
his or her interest in it independently. If the
husband or wife dies, the remaining spouse has
full survivorship rights.
In states that adhere to community property
laws, the husband and wife are each given an
equal interest in everything they own with the
exception of the separate property of either
individual. A majority of the property obtained
by a husband and wife during a marriage is con-
sidered community property. State law defines
precisely what is considered separate property.
In general, separate property includes whatever
each party brought to the marriage and any-
thing either spouse individually inherits during
the marriage.
Equitable distribution is a method of prop-
erty distribution that considers both the eco-
nomic and noneconomic contributions of each
spouse to the marital relationship, as well as
each spouse’s needs. It is based on the theory
that a marriage should be regarded as a partner-
ship of equal individuals.
Disputes over property ownership may arise
when one spouse dies. A majority of jurisdic-
tions have eliminated the common-law rights of
DOWER and curtesy, which require that a spouse
receive a specific portion of an estate. As an
alternative, when one party leaves a will that dis-
inherits her or his spouse, the survivor ordinar-
ily has the right to acquire an elective share of
the estate, which typically amounts to approxi-
mately one-third of its value. In some jurisdic-
tions, this right is given only to a surviving wife.
Elective shares do not prevent the dissipation of
