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 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 commonly found amongst families with substantial landed property, 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 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 property, 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, daughters and younger sons 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;
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 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.^[1]

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 ownership and 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.^[2]

Each of the four bodies of English property law provided instruments for assurance through marriage settlements for 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.^[3]

The various legal instruments developed for marriage settlements in Early Modern England characteristically exploited the principles of ecclesisatical 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 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.

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 a 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 female daughters' inheritance above male cousins, so splitting the family patrimony and potentially alienating it from the family name; 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.

Coverture. Under this doctrine in the common law, all adult women were divided into one of two categories, termed (in legal French) 'femes sole' or 'femes covert'. As a 'feme sole', an unmarried or widowed adult woman in England enjoyed legal rights little different from that of an adult male; her legal actions were in no degree under the control or supervision of any adult male relative - whether parent, father-in-law, brother or legal guardian. But while married, an adult woman in England became a 'feme covert' and her legal identity became almost entirely eclipsed by that of her husband. She could not enter into legal contracts, not could she sue or be sued in law independently of her husband. Any property she brought into the marriage, and any property she acquired or inherited during the marriage, fell under the control of her husband; who then had unrestricted access to any profits from them. She would retain legal title to any freehold lands, so that her husband could not sell these without her consent; but other property, including money, furniture, and agricultural produce, became her husband's, and he could dispose of them in his lifetime, and crucially his creditors could pursue them for his debts. A wife could not, during her marriage, make a will, unless with her husband's consent; and although a husband had a legal obligation to provide for his wife, since she had no separate identity she could she pursue him in law for any failure to do so.

Although almost all women in Early Modern England were married at some point in their lives, at any one time only around half were married, and so under coverture. As Amy Erikson has shown, the common law in England was unusual both in the degree of economic freedom enjoyed by adult women as 'femes sole', and in the degree of economic control foregone as 'femes covert'. "English property law was distinctive in two respects: first, married women under coverture were even more restricted than in the rest of Europe; second, single women enjoyed a position unique in Europe as legal individuals in their own right, with no requirement for a male guardian".^[4] Furthermore, since the overwhelming majority of estates-at-death were administered by women as 'executrices', and as property held as an executrix did not fall under coverture, a high proportion of the overall private asset-base of English households would at any one time, be held by adult women. Families and households at all levels of economic status were consequently concerned to find ways to circumvent the possibility of family assets held by adult women as 'femes sole' subsequently being dissipated by a profligate husband due to coverture in common law, or swallowed up in paying his debts; and the ecclesiastical courts, and courts in equity, were in general ready to facilitate this in enforcing marriage settlements. Nevertheless, all aspects of economic activity by single women were constrained by the ramifications of coverture, in that the risk of any single woman subsequently marrying - and so losing their independent legal personality - always remained an unknown quantity.

Settlement by Bond

Far the simplest, cheapest, and far most common forms of marriage settlements were those established by bond. Such settlements are found at all levels of economic status. Before marriage a bride would identify specific property as her dowry to be brought into the marriage, and the bridegroom would then enter into a bond to make that same property (or its equivalent in value) available to his wife in widowhood, or after her death to her offspring. The complication being, that due to coverture, any bond directly between a bridegroom and bride would be void on their marriage. This problem was resolved through the participation of a compliant 'bondsman', commonly a minister of religion or a local landowner, who would be party to the bond on behalf of the bride. Should the husband, or his executors after his death, fail to convey the specified property as set out in the bond within a set period (commonly six months after death), a penalty of twice the value of the property in question would notionally be due to the bondsman. The intention of the bond was to create a debt within the husband's estate, which could only be discharged through restoring the widow with her dowered property. On the face of it, this was an obvious contrivance to benefit the widow and her offspring to the disadvantage of her late husband's other creditors. Nevertheless, both ecclesiastical and common law courts would enforce these bonds, on the understandings;

that the property in question had been brought into the marriage by the wife, and so remained morally 'hers' whatever coverture might indicate;
that, as almost all estates-at-death were administered by a widow or daughter as executrix, so it would be both natural and proper for her to favour the needs of the deceased's family over other creditors, and she should not be penalised for doing so;
that, when the deceased man's property might be encumbered in debt, the public interest was best served for those funds available to be directed first to his widow and children, so minimising any call upon the Overseers of the Poor.

Three forms of settlement by bond are found in Probate records:

a bond to repay to the widow after death a sum equivalent to the value of specified property she had brought into the marriage;
a bond to pay a sum equivalent to the value of specified property a remarrying widow had brought into the marriage from her previous marriage, as portions to the offspring of that marriage;
a bond to convey specified property brought into the marriage by the bride into the ownership of the bondsman in trust for the bride's use during the marriage; and for her support in her widowhood, and otherwise for her offspring or as devised by her will.

This third form of bond corresponded in law to a 'separate estate' as detailed below, although this specific term is never used in the record; and similarly would be enforced as a trust through the Court of Chancery. The difference being that the bondsman, though legally a trustee, had no responsibility for managing the property in question, which remained in the hands of the wife during the marriage - who then enjoyed its income, but as a life tenant, so she could not sell it. But crucially, this property was protected from seizure by her husband's creditors. This third form of bond appears to have been used mainly in respect of properties with values of several hundred pounds (in the values of the day); rather more than for settlements of the first two forms, but much less than that for settlements where a full 'separate estate' was arranged with legal trustees.

Modern status

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 for 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.

References

^ Erickson, Amy Louise (1993). Women and Property in Early Modern England. Routledge. pp. 21–24. ISBN 0-415-13340-8.
^ Erickson, Amy Louise (1993). Women and Property in Early Modern England. Routledge. pp. 226–229. ISBN 0-415-13340-8.
^ Erickson, Amy Louise (1993). Women and Property in Early Modern England. Routledge. pp. 169–170. ISBN 0-415-13340-8.
^ Erickson, Amy (2005). "Coverture and Capitalism". History Workshop Journal. 59 (59): 1–16. doi:10.1093/hwj/dbi001. JSTOR 25472782. Retrieved 5 November 2025.

[1] Erickson, Amy Louise (1993). Women and Property in Early Modern England. Routledge. pp. 21–24. ISBN 0-415-13340-8.

[2] Erickson, Amy Louise (1993). Women and Property in Early Modern England. Routledge. pp. 226–229. ISBN 0-415-13340-8.

[Women_and_Property_in_Early_Modern-3] Erickson, Amy Louise (1993). Women and Property in Early Modern England. Routledge. pp. 169–170. ISBN 0-415-13340-8.

[4] Erickson, Amy (2005). "Coverture and Capitalism". History Workshop Journal. 59 (59): 1–16. doi:10.1093/hwj/dbi001. JSTOR 25472782. Retrieved 5 November 2025.

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