My first experience working on deeds was when I was halfway through a course in women’s history at college so in a tiny act of rebellion, when I received a deed request for John Smith and Jane Smith, married to John Doe and Jane Doe, married, I would draft it as Jane Smith and John Smith, Wife and Husband to Jane Doe and John Doe, Wife and Husband. It was a nice change compared to the older deeds where the husband always came first, or worse, when they listed them as John Smith and Jane Smith, his wife. And then, several deeds in, came the request from the title company for a change to the language: “underwriting requests that the Grantors be listed as ‘John Smith and Jane Smith, Husband and Wife. Please update and return.” Why on earth would it matter the order of the names?
Well, like so many things in life, that answer is in the history books. As a former colony, a great deal of American law is based in English common law and coverture, where a married woman ceased to exist as a legal entity and was “covered” by her husband, was a legal reality for centuries on both sides of the Atlantic. Prior to marriage, a woman would exist as her own entity legally and if she was widowed without children (or male relatives to fight on inheritance) once again a legal status would be restored. Obviously, there were still limitations on many of these rights, but nothing compared to the complete lack of rights for married women. Upon marriage a woman’s legal existence ceased. She could hold no property separately, receive no inheritance. Sell nothing, buy nothing. Even her children were not hers.
The reality of what this meant for women’s daily lives obviously varied depending on how much a husband chose to use the letter of the law to control the household and year after year, decade after decade different aspects of coverture have been curbed. But the legal reality that it has never simply been overturned should not be ignored, especially when hints of it are still coming through in our daily practice. Just this week our office had to prepare an addendum to be signed by all parties in the transaction acknowledging the husband of our buyers as the primary borrower. Both buyers are going to appear on the deed and mortgage for their marital residence, both buyers are working and have good credit, and both buyers have capital being used for the down payment so we asked the lender why would we need to formally name him primary borrower? The answer was simply “it is the credit union’s policy”.
Hints of coverture, or a husband and wife existing as one entity, are elsewhere in more obvious fashion, even with updates. For instance, in New Jersey a married couple spending just one night in a property can make it a marital residence, meaning both husband and wife need to sign a deed to avoid possible future title disputes. Now the change of course is that in the 1700’s a husband could do what he liked with a marital property and modern marital residence law means that even if a deed is just in a husband’s name, he cannot simply sell the property without his wife’s knowledge. But it also goes in the other direction, as we explained to a client recently who was selling her home one week after her wedding. When we explained that if her and her new husband spent even one night in the property together before closing title would require him to sign all of the documents, she was shocked. But her marriage had impacted how her property was viewed in the eyes of the law, so it had to be addressed. Even a property purchased when you are single and sold when you are embarking on the new phase of your life will be touched.
I still try and rebel by listing wives before husbands and sometimes I still get the request back to change the order, but hopefully as more deeds go into the public record as “Wife and Husband” underwriters will stop fighting it and we can keep chipping away at another legal tradition that belongs in the past.