Husband and Wife

AuthorJeffrey Lehman, Shirelle Phelps

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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 common 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

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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 PROTECTION of the laws" (U.S. Const. amend. 14, § 1), the U.S. Supreme Court has never interpreted this to mean that states must treat husbands 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.


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 support 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 prevent 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 initiated by men although today an equal obligation of support applies.


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 contracts, 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 couple is obtaining a DIVORCE. Courts are otherwise reluctant to become involved in property disputes between a husband and wife. Various systems 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 property together. This type of arrangement ordinarily 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 considered community property. State law defines precisely what is considered separate property. In general, separate property includes whatever each party brought to the marriage and anything either spouse individually inherits during the marriage.

Equitable distribution is a method of property distribution that considers both the economic 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...

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