Under the English law of yesteryear, married women had no rights to property and progeny. For that reason, impecunious male members of the gentry would keep their eyes peeled for heiresses they could woo into marriage, while others, like the convict Sir Henry Browne Hayes (transported to NSW in the Atlas in 1802), kidnapped them and forced them into marriage. Marriage gave a man ownership of his wife’s money, which he could use to save his estate or set up a mistress or gamble or do anything else he wanted.
Upon marriage, a woman’s separate legal identity ceased to exist. Women became complicit in ensuring their own invisibility by abandoning their surnames upon marriage and adopting those of their husbands, even though there was no legal requirement to do so then or now (it is merely tradition). To make matters worse, it became customary for women to ‘abandon’ their given names as well. They became ‘Mrs John Smith’ that is, ‘the mistress of John Smith’, a possession like his cows and his chooks. It was almost impossible for a woman to escape the marital knot. Divorce required an Act of Parliament, which women had no money to finance. Moreover, when a woman endeavoured to leave a bad husband through divorce or otherwise, her rights to her children were at her husband’s whim, and he often kept them just to spite her.
Liberal thinkers saw the dreadful situation many women found themselves in. If a woman was tied to a lazy drunk, she would be forced to work during the day without any right to the money she earned, to feed and care for her family in the evening with the little money he would give her, and to suffer his brutality and sexual advances at night. When the Anglican marriage service made a woman vow to ‘submit’ to her husband, it meant it in every sense of that demeaning word. Some ‘feminists’ were so horrified at what they saw of marriage that they chose to remain single.
Social reformers realised that if women were granted the legal right to their own income and property they would at least have some autonomy in a difficult marriage. The social conservatives were horrified at the idea. They believed that their homes would be riven by discord, and that women would fritter away their money or invest it foolishly. Worse, such rights would put women on an almost equal footing with their husbands, which was an appalling idea, a barbarous, semi-civilised notion. A happy home required a subservient wife. The man must be lord and master of his wife and children. Blah, blah. In Tennessee, the legislature said that married women lacked ‘independent souls’ so should not be allowed any property rights.
The social reformers won the day. Married Women’s Property Acts were passed in England in 1870 (and improved in 1882) and Scotland in 1881, in the Australian States of Victoria in 1870 and New South Wales in 1879. The United States of America began earlier with legislation passing in some states as early as 1839. Google ‘Married Women’s Property Act’ for your place of interest and you should be able to find specific legislation dates, or at least start the search for more information.
For family historians, the significance of this social situation and the consequences of these acts can be seen in probate records. Lists of surviving English or Australian wills rarely include married women prior to the mid-1800s, whereas the names of widows and spinsters can often be found. With the passage of these acts, the legal situation changed. Married women not only retained the right to their own income and property, they could bequeath it to whomever they chose.
Interestingly, Scottish married women retained rights to property—and, historically, also retained their surnames. Married women are regularly named in lists of Scottish wills from the time these lists began, and most references note their maiden as well as married surname. For example, land dealings in the 1700s involving my female ancestor listed her as ‘Christian Clark or Watson’, Clark being her maiden surname and Watson her married surname. Scottish baptism records almost always list the mother under her maiden name, making her ancestry easier to determine than in England. English baptisms rarely do so. Accordingly, if an English marriage entry is not found, it is extremely difficult to determine an English wife’s maiden name and to trace her ancestry back any further.
So, that’s the long answer as to why I didn’t change my surname upon marriage. Needless to say, I didn’t inflict it on my questioners!