Husband and Wife

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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 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 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 individuals.

Disputes over property ownership may arise when one spouse dies. A majority of jurisdictions 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 disinherits her or his spouse, the survivor ordinarily has the right to acquire an elective share of the estate, which typically amounts to approximately one-third of its value. In some jurisdictions, this right is given only to a surviving wife. Elective shares do not prevent the dissipation of an estate prior to death.In separate-property states, if a husband or wife dies intestate (without leaving a will), statutes provide for the surviving spouse to acquire a specified portion of the decedent's property. A statute might, for example, prescribe that the surviving spouse can acquire a one-half interest in the estate. The size of the portion depends on whether there are surviving children.

The distribution of property between a husband and wife might also be affected by a pre-marital agreement, also called an antenuptial or prenuptial agreement. Premarital agreements are typically entered into by a man and woman before they are married, to arrange for the distribution or preservation of property owned by each spouse in the event of divorce or death.

Sexual Relationship

The most unique aspects of the relationship between a husband and wife are the legal sanctions attached to their sexual relationship. A number of states will grant a divorce based on the ground that a husband or wife was denied sex by his or her spouse. Similarly, an individual is ordinarily able to obtain an Annulment if his or her spouse is unable to engage in sexual relations. The right of the state to interfere with the marital sexual relationship is limited by the U.S. Constitution as interpreted by the Supreme Court.

In the landmark case of griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the Court held that state statutes cannot unreasonably intrude into the marital sexual relationship. In this case, Connecticut was not allowed to enforce a statute that made it a crime for a physician to counsel married people on Birth Control. This was viewed as an unreasonable intrusion into the marital sexual relationship, since the sanctity of the marital relationship would be invaded if the statute were enforced. The Court emphasized the significance and constitutional considerations of privacy in marriage.

It was once thought that the degree of privacy to which a married couple is entitled could be restricted. Although some state statutes have used this reasoning to attempt to prohibit certain sex acts between a husband and wife, such as anal and oral sex, most courts have maintained that married couples have a constitutional privacy right over their marital sexual activities (Lovisi v. Zahradnick, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 [1976] [mem]).

A husband and wife have the right to purchase and use birth control devices—although when an individual uses contraceptives or becomes sterilized contrary to his or her spouse's wishes, this might provide grounds for annulment or divorce.

Abortion has been viewed as an additional restriction on the sexual rights of a husband and wife. A wife's right to choose abortion takes precedence over the husband-and-wife relation-ship. A husband may not preclude his wife from having a legal abortion, nor may he compel her to have one. The Supreme Court struck down statutory requirements that a husband must be notified of his wife's abortion, in Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).

At one time, a husband was allowed to have sexual relations with his wife with or without her consent, and for many years, courts supported a marital exception to laws against rape. Under current law, the fact that the accused party and the victim were husband and wife can no longer be used as a defense to criminal charges. Violent assaults on a spouse are illegal in all states. A savage rape attack by a husband on his wife might be subject to prosecution as an assault or, in some cases, as an attempted murder.


Common law put many restrictions on a husband and wife when crimes occurred between them or against the marriage relationship itself. At one time, the courts recognized lawsuits based on Heart Balm Acts. In such an action, a husband asserted that a monetary recovery would salve the "broken heart" caused by a third party's intrusion into his marriage. The basis for many of these causes of action was that a husband was being denied his rights to the affections and services of his wife; these lawsuits did not extend to a wife.

A husband once had an actionable injury if anyone induced his wife to leave him, under the theory that he was entitled to sue for damages any person who divested him of a servant. Similarly, a husband was able to bring an action for criminal conversation if his wife voluntarily engaged in Adultery. The theory was that criminal conversation interferes with a husband's exclusive privilege to obtain sexual services from his wife. The basis of recovery is the public policy in favor of preserving marriage and the family. Alienation of affection is another seldom prosecuted action. In this type of action, a husband must prove that another man won his wife away from him, thereby depriving him of love, comfort, and companionship.

Because of the theories that gave rise to such causes of action, very few jurisdictions recognize lawsuits based on heart balm acts.Yet, even today, Tort Law retains some special rules for husbands and wives when an outsider causes injury to the marital or family relationship. Consortium is the marital relationship between two people that encompasses their mutual right to support, cooperation, and companionship. An action for loss of consortium is based on the inconvenience of having a debilitated spouse. Husbands and wives have won suits for damages for injuries to their spouse precipitated by such things as Medical Malpractice, automobile accidents, False Imprisonment, and Wrongful Death.

Under common law, a husband was held responsible for any crimes committed by his wife against a third party. Although a wife had responsibility for crimes she committed, there was a legal presumption that her husband compelled her to perform any act she undertook when he was present. Today, husbands and wives are equally liable for their own criminal actions.

Privileged Communication

The law of evidence includes a privilege extended to a married couple so that neither a husband nor a wife can be compelled to testify against a spouse. This rule was designed to protect intrafamily relations and privacy. In addition, it was meant to promote communication between husbands and wives by making revelations between them strictly confidential.

In 1980, the U.S. Supreme Court, in Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186, held that husbands and wives were permitted to testify against one another voluntarily in a federal criminal prosecution. Many states now allow a spouse to testify against a husband or wife, but with the caveat that the testimony is subject to the accused spouse's consent. Other states view the spouse of an accused person as an ordinary witness who can be forced to testify against the accused person.

Domestic Abuse

It was once presumed that a husband should have the right to exert physical control over his wife, if only to protect himself from liability for his wife's actions. Therefore, common law permitted a husband to discipline his wife physically. Interspousal tort immunity made it impossible for a wife to succeed in an action against her husband. It was rare for a wife to accuse her husband of a crime, and a wife was forbidden to testify against her husband. Today, a wife is almost always permitted to testify against a husband who has been accused of causing intentional injury to her or their child. With interspousal tort immunity all but abrogated in most jurisdictions, husbands and wives can now recover in suits against one another under the theories of fraudulent Misrepresentation, Battery, intentional infliction of emotional distress, and Negligence.

The common-law right of a husband to discipline his wife combined with interspousal tort immunity prevented incidents of domestic abuse from becoming public. In addition, victims of domestic abuse often did not reveal the extent of their injuries for fear of reprisals. Little legal relief was available, as courts were hesitant to interfere in the husband-and-wife relationship. With the abrogation of interspousal tort immunity, the U.S. public has become aware of domestic abuse as a nationwide issue.

In some cases, victims of domestic abuse who have injured or killed their spouse as a means of Self-Defense against violence and abuse have been acquitted of criminal charges. The battered spouse syndrome is a defense these men and women have asserted. The syndrome, a subcategory of post-traumatic stress disorder, seeks to explain why some spouses remain in abusive relationships and others finally use violence to break out of such relationships. Because battered women are typically economically dependent on their husband, they hesitate to seek help until the violence escalates to the point where they believe the only way to free themselves is to kill their abuser.

Same-Sex Marriage

In the 1980s and early 1990s, lawsuits were initiated to expand the traditional husband-and-wife relationship, and the rights and privileges that relationship conveys, to partners of the same sex. In a landmark case, Baehr v. Lewin, 74 Haw. 645, 852 P.2d 44 (1993), the Hawaii Supreme Court, although rejecting the idea that the Hawaii Constitution gives same-sex couples a fundamental right to marriage, held that Hawaii's marriage statute (Haw. Rev. Stat. § 572-1) discriminates on the basis of sex by barring people of the same sex from marrying. As a result, such statutes are subject to Strict Scrutiny. However, in 1998 Hawaiian voters overwhelmingly approved a constitutional amendment that, while not banning same-sex marriage, gave the legislature the power to restrict marriages to opposite-sex couples.

In 1996, largely in response to Baehr, Congress passed the Defense of Marriage Act (110 Stat. § 2419), which defines marriage as "a legal union between one man and one woman as husband and wife." The term spouse is defined as a "person of the opposite sex who is a husband or a wife." In effect, the Defense of Marriage Act states that the federal government does not acknowledge same-sex marriages.

In 2001, however, Vermont became the first state to enact a law recognizing "civil unions" between same-sex couples (23 V.S.A. § 1201 et seq. [2000]). The 2000 law came in response to a 1999 Vermont Supreme Court ruling (Baker v. Vermont, 170 Vt. 194, 744 A.2d 864 [1999]), which found that the benefits and protections guaranteed by the Vermont Constitution for opposite-sex couples extend to same-sex couples. Benefits and protections include access to a spouse's medical, life, and disability insurance; hospital visitation, and other medical decisionmaking privileges; spousal support; and the ability to inherit property from a deceased spouse without a will.

Further readings

Chriss, Margaret J. 1993. "Troubling Degrees of Authority: The Continuing Pursuit of Unequal Marital Roles." Law & Inequality Journal 12 (December).

Hartog, Hendrik. 2000. Man and Wife in America: A History. Cambridge, Mass.: Harvard Univ. Press.

Keane, Thomas M. 1995. "Aloha, Marriage? Constitutional and Choice of Law Arguments for Recognition of Same-Sex Marriages." Stanford Law Review 47 (February).

Nickles, Don. 1996."Defense of Marriage Act." Congressional Record 142.

"Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees." 2002. Loyola Law Journal 33.

Waggoner, Lawrence W. 1994. "Marital Property Rights in Transition." Missouri Law Review 59 (winter).

Wanamaker, Laura H. 1994. "Waite v. Waite: The Florida Supreme Court Abrogates the Doctrine of Interspousal Immunity." Mercer Law Review 45 (winter).


Domestic Violence; Family Law; Gay and Lesbian Rights.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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