Pre-marital contracts: A study through history

Most people are familiar with the concept of a pre-nuptial agreement. The media is rife with salacious stories of celebrities whose marriage breakdowns are eased by the existence of a pre-nuptial agreement, and those who are drawn in to lengthy and costly proceedings over the lack of one. High profile cases, such as the 2016 divorces of Johnny Depp and Amber Heard, and Brad Pitt and Angelina Jolie, spark debate and breed speculation whether a breakdown of marriage is anticipated by entering in to such agreements. Either way, these agreements appear relevant only to the rich and famous.

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Married To An Old Maid — A Rake’s Progress series, by William Hogarth

It may perhaps be surprising therefore for readers to learn that marriage settlements (or a pre-nuptial agreement in modern parlance) were used far more widely in the early modern period than they are today, nor were they something only used by the wealthy. Planning for life beyond a parties’ marriage was not an uncommon feature of marriage preparation and negotiation in the early modern period. Families often wished to protect their daughter’s property from being absorbed into their son-in-law’s family. Many were concerned to ensure that their daughter’s husbands could not ‘kiss or kick’ from her property which would have reverted to her (and thus her natal family) upon her husband’s death.[1]

As such, many families began from the mid seventeenth century onwards to use trusts in order to secure a wife’s separate property. This usually gave her access to income but also protected the realty and personal capital from harm; most importantly, such trusts could be (and were) enforced through the law of equity.

One example of how trusts functioned is demonstrated through the life of a widow named Catherine Langwith. Catherine sought to protect her assets when embarking on her marriage to her second husband, the Reverend Robert Younge in 1782. In the settlement, Catherine secured £20 per annum for her own separate use. During their short and difficult marriage, Younge attempted to assign some marital property away, but was rebuffed by lawyers, who advised him that without her agreement, or a court order, he could not dispose of property against which Catherine’s separate estate was secured.[2] After four years of marriage, the parties entered in to a separation agreement, once more protecting Catherine’s assets from her husband. Catherine continued to demonstrate financial shrewdness when she corresponded with her cousin after the death of her estranged husband, determining that she would seek to recover all she could, ruminating that “we had better take the very Best Counsil opinion upon it.”[3]

The existence and implementation of marriage settlements has bred debate amongst historians, particularly as to whether they benefited women. Scholars such as Lloyd Bonfield and Amy Louise Erickson argued that settlements represented a shift towards greater equality[4] and gave women ‘more power over property than previously allowed.’[5] By contrast, Leonore Davidoff and Catherine Hall suggested that trusts removed women’s independent economic agency over their estates and subsequently female access to the marketplace.[6]

It is these and other debates which inform my doctoral research. Over the next few years of my PhD research, I will be exploring women’s agency within early modern pre-marriage agreements, focusing in particular on the question of whether women had greater autonomy over their property than the letter of the law suggests. As is clear from the case of Catherine Langwith, even though trusts may have been set up to protect against overbearing husbands, many women were pro-active in using settlements for their own ends. Catherine would have been secure in the knowledge that such settlements were enforceable in equity. Today, a pre-nuptial agreement is only one factor that English courts will take in to account when deciding a disputed case. One reason given for this is that women may be pressurised into accepting an arrangement that is not in her best interests. As with Catherine Langwith, many eighteenth-century women were using legal devices with aplomb; perhaps the courts of today could reflect on these advantages.

In other words, examining the marriage settlements of the past may inform how we view pre-marriage arrangements of the future. In realising the extent to which pre-marriage settlements were used by a broad range of people in the early modern period, it may allow us to re-evaluate the benefit of using them now. This may also lead us to accept them as a feature of our everyday lives, rather than leaving us to uncomfortably peer and wonder at the private lives of the rich and famous.

Stormm Buxton-Hill, PhD Candidate, University of Hull

Image: The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN 3936122202. Distributed by DIRECTMEDIA Publishing GmbH.

[1] Courtney Stanhope Kenny, The History of the Law of England as to the Effects of Marriage on Property and on the Wife’s Legal Capacity (London: Reeves and Turner, 1879), p.204.

[2] UDDDU/21/25

[3] UDDDU/20/9

[4] Lloyd Bonfield, Marriage settlements, 1660-1740 (Cambridge: Cambridge University Press, 1983), p. 120

[5] Amy Louise Erickson, Women and Property in Early Modern England (London: Routledge, 1995), p.19;

[6] Leonore Davidoff and Catherine Hall, Family Fortunes: Men and Women of the English Middle Class, 1780-1850, (London: Routledge, 2002), p. 209-11