A marriage settlement was a legally enforceable agreement made between the families of a bride and bridegroom intending marriage, specifying family assets from both parties that would be available to the couple during their marriage, commonly also reserving contingent portions of the marital assets to be available to the wife for her personal expenses, to support her in widowhood, and to provide for her offspring. While such arrangements have developed in many cultures of property law, commonly labelled as dowry and dower, they took very specific forms in England and Wales in the Early Modern period (1650 to 1850) due to the multiplicity of bodies of property law applying in England in this period, and also to the peculiarities of one of those bodies of law, the common law of England. Equivalent legal instruments are found in this period in other territories with legal jurisprudence deriving from English Common Law, such as colonial New England and the British West Indies.
The three major forms of marriage settlement in this period are commonly termed settlement by bond, strict settlement and separate estate. The latter two forms were generally found only amongst families with substantial landed property or inherited wealth, being created as trusts of land or other assets. The family's lawyers, as trustees, would be established as the legal owners of these assets, such that the bride and bridegroom would be beneficial owners during their lifetimes, which after their deaths, would descend to one or more of the children of the union, or otherwise as devised by will.
'Marriage settlements' are to be distinguished from 'bride prices' - payments from the family of the bridegroom to that of the bride (or sometimes vice versa), as too from prenuptual agreements made in anticipation of the contingency of a marriage being terminated by divorce or marital separation. In the Early Modern period, marriage settlements were ubiquitous amongst propertied families in England, and very common too across all other social classes, such that that a bride's marriage portion in her settlement was considered to comprise a major element of her share in the inheritance due from her paternal family. Consequently, forms of marriage settlement also commonly acted as forms for overall inheritance shares, and vice versa.
While it remains common in England for the families of a married couple to contribute to their financial assets as a 'bottom drawer' or 'trousseau', the specific legal instruments that developed for marriage settlements in England fell out of use from 1850 onwards due to: Processes for unifying the various bodies of property law across England, curtailing or ending the separate jurisdictions of the ecclesiastical courts (Court of Probate Act 1857), manorial courts (Copyhold Acts), and the Court of Chancery in the Judicature Acts 1873 and 1875. Statutory provision for wives to retain their own assets in marriage in the Married Women's Property Act 1882. Development of a national system of statutory social security, replacing the operation of the Poor Laws. Reform of the laws of landed property, removing the status of entailed land in the Law of Property Act 1925.
Purposes and context Underlying the development of instruments for marriage settlement in England were a series of shared common cultural assumptions about marital property; which in this period commanded wide assent in general, even while it was recognised that they might conflict with one another in particular cases that the family patrimony, and in particular historic family land, should be maintained undivided as an inheritance in the family name for future generations of family members; that, when the male heir to property married, sufficient value from that property should be available to him and his bride to support their raising a family, even in advance of his coming into his full inheritance; that there should be constraints over the degree to which succession to the family property by an "unthrifty" or "wasteful" heir might extinguish the patrimony of succeeding generations; that in addition to the male heir of the family property, his sisters and younger brothers should be assured of a sufficient portion of inheritance to enable them to maintain their social status and marital prospects; that, if a wife survived her husband, the value of property she had brought into the marriage should be available to support her in her widowhood; and that after her own death it should be accessible to the offspring of that marriage; that, if a widow remarried, the value of property that she had received from her first marriage should continue to be accessible to support any offspring of that marriage.
In supporting the development of legal instruments to create marriage settlements, the courts would also take into account specific goals of public policy: that the intentions and aspirations of past generations should not be interpreted to constrain in perpetuity their successors as owners of the land in disposing or alienating this land; that the requirement on the executrix of a will to administer the deceased's estate should not be interpreted to require her to favour the creditors of the estate, or otherwise any stipulated beneficiaries in the will, to the extent that the widow and her offspring might avoidably be left destitute as a charge upon public funds under the Overseers of the Poor.
Multiplicity of property laws in England
The ownership of property before the mid 19th century in England was subject to four distinct but overlapping bodies of law, each with its own courts and particular fields of application.
The common law applied for the ownership and inheritance of agricultural 'freehold' land, and for debts and commercial contracts; Ecclesiastical law (and the ecclesiastical courts) applied for the inheritance of money and moveable property, and for the probate of wills. Before the 18th century, principles for the inheritance of moveable property in the ecclesiastical Province of York differed from those in the Province of Canterbury, while those for Wales and London differed again; Equity and the Court of Chancery applied for marriage settlements, guardianships, trusts and mortgages, but also provided remedies for some clearly unfair (inequitable) systematic outcomes from the rigidity of the common law. Local manorial Law and manorial courts applied for the ownership and inheritance of copyhold land, which comprised the bulk of historic residential land in villages, towns and cities. Each locality applied its own customary rules for manorial inheritance, varying from town to town.
Guiding principles in one body of law might be disregarded – or contradicted – in another. The doctrine of coverture may have acted to bar married women from having a distinct legal personality from their husbands in common law; but in the courts of ecclesiastical law, far the majority of executors receiving grants of probate or administration were female, married or not; and property held by an executrix did not fall under coverture, nor was the legal personality of an executrix subsumed into that of her husband.
Magna Carta (1215) had included clauses protecting wives' marriage portions, and widows' rights in dower from appropriation, and from seizure by their husbands' creditors, and each of the four bodies of English property law provided ancient instruments for assurance through marriage settlements of continuing incomes for widows out of their deceased husband's property; 'freebench' from copyhold land in manorial law, 'reasonable parts' from moveable property in ecclesiastical law, 'jointure' from a marriage settlement in equity, and 'dower' from freehold land in common law. In administering a deceased's estate under ecclesiastical law, these rights in widowhood took priority over unsecured creditors, or stipulations in the will. Dower and jointure functioned as legal alternatives; a widow without a jointure could always claim dower (assuming her husband owned real property). Equally, 'separate estate' and 'reasonable parts' were legal alternatives; a widow with a separate estate in equity could not claim reasonable parts of her husband's moveables.
The various legal instruments developed for marriage settlements in Early Modern England characteristically exploited the principles of ecclesiastical law or equity in order to circumvent or forestall aspects of the common law that might appear invidious for the management and inheritance of marital property in a forthcoming marriage. So the common law principle of primogeniture could be circumvented for moveable property in ecclesiastical law by partible inheritance; while the common law principle of coverture could be circumvented in her separate estate through the equitable devices of trusts.
The social environment of Early Modern England was highly litigious, such that the majority of households - across all levels of economic status - might expect to be involved in property litigation at some time in their existence. In consequence, courts and lawyers in the four bodies of law were to a degree in competition for business (and associated legal fees). Over this period, Parliament (whose membership was strongly dominated by common lawyers) enacted a series of statutes aimed at constraining the discretion of ecclesiastical and manorial courts; ultimately seeking to unify all four bodies of property law within the common law. But in doing so, it also proved necessary to enact by statute, remedies against the rigidities of the common law that had previously been accessible though these other courts.
Particularities of the Common Law
Forms of marriage settlement in Early Modern England were primarily developed to circumvent some 'undesirable' effects of three particular doctrines of the common law:
The Rule against Perpetuities. Under this doctrine, the capability of the current generation of property owners in a family to constrain the use, and potential disposal, of that property by future inheritors, was limited to those already born. To guard against potential spoliation of the family patrimony by a future unthrifty heir, marriage settlement instruments developed both to extend the scope for constraining conditions imposed by current owners to bind one further 'unborn' generation; and also to allow mechanisms for regular renewal (or 'resettlement') of constraints on the disposal of inherited property in each succeeding generation. The standard statement of this Rule was formulated in the early 18th century; but in practice, the common law courts had been striking down any legal device creating a perpetuity since 1614. Primogeniture. Under this doctrine in the common law, all freehold land, in the absence of a will would descend on the owner's death to their eldest male heir; to the exclusion of any younger brothers, or sisters. In the event of an intestate property owner having no male heirs, all daughters would inherit any freehold land in equal parts. Two 'undesirable' issues were seen in this. Unlike in some other European systems of male-preference primogeniture, the common law in England promoted a landowner's daughters' inheritance above their male cousins, so splitting the family patrimony and potentially alienating it from the family name through these daughters' marriages; but also, separately, that the concentration of family property into the hands of the eldest male heir could leave younger sons and daughters unprovided for. Marriage settlement instruments developed both to maintain, if possible, the family patrimony undivided within the family name - even in the event of there being no male heir for the current property owner; but also so as to provide mechanisms by which the reasonable portions for younger sons and daughters of the family could be assured out of income from the family patrimony.