Marriage settlement (England)

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 to the peculiarities of one of those bodies of law, the common law of England. Consequently, 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 found amongst families with substantial propertied assets, created as a trust 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 therefore 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 specified inheritance, 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 may often conflict with one another in particular cases

that the family property, and in particular family land, should be maintained 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, 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;
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 one beneficiary, to the extent that a widow and her offspring may be left destitute as a charge upon public funds under the Overseers of the Poor.

Historic usage

The marriage contract was in common use from the earliest times, and throughout the Middle Ages up through the 1930s. It is little used today in modern England and Wales due to several reasons, including the disuse of the giving of dowries, the establishment of the legal power of married women to own assets in their own right, following the Married Women's Property Act 1882; the lesser involvement and powers of parents in selecting marriage partners, the abandonment by modern society of the aspiration to establish dynasties, the introduction of death duties, the abandonment of primogeniture as a desirable social model, and the comparatively modern trend of the "working wife and mother", who earns her own money and is often financially independent of her husband.

Purposes and context

Historic usage

Further reading