THE LEGAL STATUS OF WOMEN
Shirley Cunningham, J.D., former State Extension Specialist in Agricultural
Helen M. Stevens, State Extension Specialist in Family Economics
Carol Bailey, County Home Economics Extension Agent
Historically, women have had difficulty
gaining the legal and social rights allowed men. In rare instances during
feudal times, women of aristocratic birth were allowed to rule their male
subjects, thus giving these women rights not permitted some men.
Throughout American history, there
has been constant interplay for equal rights between the sexes and between
single and married women. In reality, women fail into two legal statuses:
one applies to the single woman and one to the married woman.
Despite her sex, the single woman often
enjoys most of the rights and freedoms of a man: she can enter into legal
transactions, own and dispose of property, have a name and a nationality
of her own, and establish her own domicile.
When she marries, the woman loses some
or all of these rights depending upon the state in which she resides. For
example, in some states, only the father has authority over the children,
and in Kentucky, the woman must use her husband's last name on her driver's
license. Few laws deprive the married man of the rights that he enjoyed
as a bachelor.
American laws have been developing
since colonial times. They are based primarily on English common law with
some influence from Spain and France. In 1776, the women's rights movement
started with Abigail Adams urging her husband John Adams, even pleading
and threatening rebellion, to get a law passed in Congress allowing women
the right to vote.
Even though women hunted and fought
Indians, journeyed on horseback or went by boat across the wilderness,
tended the fields and even carried on the business, when widowed they were
regarded by law as inferior, a person to be protected. A woman's place
was in the home and in the role of motherhood. The man was the protector
and the provider.
Laws benefiting women have evolved
slowly. Women were allowed to vote only as late as 1920, long after the
Civil War and after black men were given the right to vote.
Prior to 1891, if a woman owned property
at the time of her marriage, all of it became her husband's to handle as
he wished. She could not sue or be sued, and if she took a job, her husband
had the right to collect and spend her wages. At his death, he could will
the guardianship of children to some other male. Between 1891 and 1894,
married women could not fully dispose of their property by will. After
1894, married women had the right to dispose of their whole estate by will.
According to Helen Deiss Irwin in Women
In Kentucky (University of Kentucky Press, 1979), Kentucky was one of the
most backward states in obtaining legal rights for women. She recorded
that Kentucky drifted along in a political backwater.
Despite the 14th Amendment guaranteeing
equal legal protection to all, some distinctions remain which leave women,
particularly married women, victims.
Social custom, too, restricts the independence
of both spouses as much as or more than legal restraints. The idea of "the
woman's place" and "the man's place" still poses a real threat to equality
of the sexes. Courts often rule on this philosophy.
One of the main difficulties lies in
the interpretation and enforcement of the existing laws. It is essential
for everyone to understand today's laws, amendments, statutes and special
cases and their strengths and weaknesses as they affect the equal rights
of women, if women are to assume their equal status in society.
Though marriage once gave the husband
an estate and interest in his wife's property, this is no longer true in
Kentucky. A husband gets no interest (except curtesy right) in any property
his wife owned at the time or acquired after marriage during his life.
Further, during the marriage relationship, the wife has separate and exclusive
use of her property. This property is completely free from the debts, liabilities
or control of her husband. The husband does, however, have what is called
a "curtesy right" in his wife's property as does the wife have a "dower
right" in her husband's property.
A married woman, like a man, can hold
property, sue and be sued, make property transactions, and collect and
receive rents in her own name. Real property owned by a married woman or
man can be conveyed or mortgaged free from any claims by the spouse by
a court of equity and judgment when he or she has been adjudged mentally
The husband is not ordinarily liable
for his wife's debts contracted or incurred before or after marriage. However,
he is liable for such debts to the amount or value of the property he received
from her by virtue of the marriage. Also, the husband is primarily liable
for necessities furnished to his wife during marriage. Examples of "necessities"
include medical and funeral expenses. It seems logical that necessities
should include a suitable home in which to live. However, the determination
of what are deemed necessities depends upon the economic and social status
of the parties.
When necessities are purchased on credit
extended to the husband personally, the wife has no liability. The wife
is secondarily liable if credit is extended for necessities to the wife
personally, and the husband failed to pay for them.
Ironically, Kentucky law places no
general obligation on the wife to support her husband. Common law does
impose on a wife, however, the duty to render domestic services in return
In order for a couple to solemnize
a marriage, they must first have had a medical examination within 15 days
prior to applying for a marriage license from the county court clerk's
office. After obtaining a marriage license there is a three-day waiting
period before the couple can be married. The license is valid for 30 days
after issuance. Marriage may be solemnized generally only by ministers,
judges, county officials, religious societies or justices of the peace.
At least two persons other than the couple being married and the person
marrying them must attend the ceremony. Kentucky law does not recognize
the marriage of: 1 ) persons who have been adjudged incompetent, 2 ) persons
not legally divorced from a living spouse, 3) persons not married by an
authorized person, 4) persons under the age of 18 without consent and 5)
persons of blood relations nearer than second cousins.
Kentucky law does not recognize common
law marriages attempted to be contracted within this state. Kentucky courts
do recognize as valid common law marriages contracted in states where such
marriages are allowed.
State law says that, during marriage,
the husband may choose the spouse's domicile (acquired by physically living
in a place with intent to remain for an indefinite time), though good faith
must be exercised in doing so.
A woman is not required by law to take
her husband's last name. Thus, a woman can use her birth name, former name,
or hyphenated name so long as it is not used for fraudulent purposes. However,
Kentucky law does require a married woman to use her husband's surname
on her driver's license.
A child born out of wedlock must be
given the surname of its mother. When paternity is established, the child
must be given the surname of its father. Also, a child of a marriage takes
the father's surname. However, either parent may petition to have the name
of a child changed.
A Kentucky Circuit Court has jurisdiction
to enter a divorce decree when: 1) at the time the divorce action is commenced,
the person filing has resided in this state for 180 days immediately prior
to the filing of the position, 2) the marriage is irretrievably broken,
and 3) to the extent that it has jurisdiction, the court has passed on
custody and support, property disposition and maintenance rights. An action
for divorce must be brought in the county where the wife resides, if she
resides in Kentucky. If she does not reside in Kentucky, the divorce action
must be brought in the Kentucky county where the husband resides.
Temporary orders affecting maintenance,
custody, etc., may be granted pending a final separation or divorce decree.
In making its division of the married
couple's property, the court must first assign each spouse's property to
him or her. Separate property of each marriage partner is:
1)all property acquired before marriage,
plus any increase in its value that did not result from the efforts of
the parties during marriage;
2)property acquired by gift, bequest,
devise or descent;
3)property acquired in exchange for
property in either of the above categories;
4)property acquired after a decree
of legal separation; and
5)property excluded by a valid agreement
of the parties.
After each married partner's property
is assigned to them, the court then divides their marital property in equitable
proportions. Marital property is all property acquired by either spouse
after marriage excluding 1 through 5 above.
In dividing marital property, the court
may not take fault of the separation into account. However, the court may
consider the following factors:
1)contribution of each spouse, including
the contribution of a spouse as a homemaker;
2)acquisition of the property;
3)duration of the marriage;
4)value of the property set apart to
each spouse; and
5)economic circumstances of each spouse
when the division is to become effective.
Maintenance may be awarded to either
marriage partner in a divorce proceedings; however, the award is not automatic.
The court must find that the spouse for whom maintenance is sought: 1)
lacks sufficient property to provide for his/her reasonable needs, and
2) is unable to support himself or herself through appropriate employment
or is the custodian of a child whose condition and circumstances make it
appropriate that the custodian not be required to work outside the home.
The amount and duration of maintenance
payments are left to the discretion of the court. The court considers all
relevant factors in awarding maintenance including: 1) financial resources
of the party seeking maintenance, 2) time necessary to acquire sufficient
education or training to obtain employment, 3) standards of living established
during marriage, 4) the ability of the paying spouse to meet his or her
own needs and those of the spouse seeking maintenance, and 5) fault for
the marriage dissolution.
When a child's parents are separated
or divorced, the court will award custody of the child in accordance with
the best interest of the child. Both parents are given equal consideration.
The courts are mandated by law to consider all relevant factors in custody
cases which include 1) the wishes of the parents and child(ren) with his
or her parents or anyone who may significantly affect the child's best
interests, 3 ) the child(ren)'s adjustment to his environment, and 4) the
health of the individuals involved. The court may grant joint custody to
the child(ren)'s parents.
The non-custodial parent is entitled
to reasonable visitation rights unless it would endanger the child.
Either parent may be ordered to make
reasonable and necessary child support payments. Though the court cannot
consider marital misconduct in ordering support, they may consider the
following factors: 1 ) financial resources of the child(ren), 2) custodial
parent's financial resources, 3) standard of living the child(ren) would
have enjoyed had the marriage not been dissolved, 4) physical and emotional
condition of the child(ren), 5) educational needs, and 6) the financial
resources and needs of the non-custodial parent. The provisions for child
support are terminated by the child's emancipation, unless the parents
A married woman who has been a resident
of this state for 30 days may seek protective orders from the court if
she or her child(ren) are abused by her spouse or others. Financial support
and custody order may also be granted by the court. The court may also
waive prepayment of court cost.
An abused spouse may have their abuser
arrested without a warrant. Within 12 hours following the arrest, the abused
person must sign a written statement, stating that an abuse occurred and
the person who committed it. If you are abused or threatened with abuse,
you should immediately contact your local law enforcement agency.
Insurance policies made payable to
or for the benefit of a married woman is hers exclusive of claims by her
husband's creditors. A married woman may also take out a policy on the
life, health or disablement of her husband or children. When the woman
pays the premiums on the policy, the proceeds are hers, free of claims
by her husband or his creditors.
In fact, it is a good idea for the
wife to maintain an insurance policy on her husband. This will provide
protection for the wife in the event her husband dies or otherwise becomes
disabled. Also, where the husband has an insurance policy with his wife
named as beneficiary, the wife should make sure that her name is listed.
If the husband's policy beneficiary is listed as merely "my wife," then
the insurance proceeds would go to whomever is his wife at death, and not
necessarily his current wife. A wife is also more assured of receiving
the insurance proceeds if her appointment as beneficiary is irrevocable.
When a wife is made a beneficiary in an irrevocable clause, she cannot
be removed as beneficiary without her permission.
A divorced woman can obtain an insurance
policy on her ex-husband where there is an "insurable interest." Examples
of insurable interest in this case may include certain business interests
or ties with the children born of their marriage. An insurance representative
should be consulted about whether an "insurable interest" exists.
Incidence of ownership of an insurance
policy should be carefully considered to avoid federal estate taxes.
The Social Security Act is intended
to provide for the "general welfare." The old-age survivors and disability
insurance system, and hospital insurance benefits for the aged and disabled
are largely financed out of taxes paid by employers, employees and the
self-employed under the provisions of the Federal Insurance Contributions
Act and the Self-Employed Contributions Act. It is extremely important
that every employee and self-employed individual obtain a social security
number. This number is used in keeping a record of individual earnings.
Information on applying for a social security number may be obtained from
your local social security office. This same number should be used throughout
your lifetime. Even if you are not covered by social security, you may
need a social security number for income tax purposes, application for
supplemental security income, hospital or medical insurance or for identifying
particular groups of persons. Social security numbers may also be used
by government authorities in administering tax, public assistance, driver
licensing or motor vehicle registration laws.
The amount of benefits payable, entitlement
to social security benefits, and hospital insurance benefits, etc., are
all determined by the amount of earnings credited to your social security
account. Each social security account is identified by an individual social
A woman's earnings for household production
are not included in social security. Her assistance with farm or business
operations are, in general, not included for payment into social security.
At retirement, benefits are paid to the wife according to her reported
earnings or one-half of the amount of her husband's earnings, whichever
is the greatest. At the husband's death, the wife will receive the amount
a husband has been receiving.
Other regulations apply to divorcees
and widows with minor children.
Kentucky law specifically prohibits
discrimination by most employers in employment practices. It is unlawful
for most employers to: 1 ) not hire, or to discharge any person, or 2)
otherwise to discriminate against an individual with respect to their employment,
because of his or her race, color, religion, national origin, sex, or age
between 40 and 70.
The prohibition of discrimination "because
of sex" includes discrimination because of or on the basis of pregnancy,
childbirth or related medical conditions. Any woman affected by pregnancy,
childbirth or related medical conditions must be treated the same for all
employment purposes, including the receipt of benefits under fringe benefit
programs, as other persons not so affected but similar in their ability
or inability to work.
Women have the same right as men in
applying and receiving credit. Women have a right to their own credit rating
in their own name.
You should contact an attorney or the
Human Rights Commission if discrimination is suspected.
Some Discrimination May Still Exist In Practice
Property rights are still a source
of sex discrimination. For figuring federal estate and Kentucky inheritance
taxes, proof of financial contributions (personal income, inheritance,
gifts, etc.) to jointly held property is often more difficult for women.
In most cases proof may not be necessary for men.
One problem that arises is the fact
that, in most cases, a man can prove that he has paid for joint property
while a woman, because her work in the home has not been given economic
value, cannot. However, women who actually perform farm work or participate
significantly in a business operation, such as a family grocery store,
may be able to prove contribution. A wife may show contributions through
gifts from her parents or from others.
Should a fulltime homemaker become
disabled, she and her dependents have no right to social security, even
though her services are lost to her family.
Laws governing maintenance (alimony)
and child support are often less protective than they seem. Some studies
show that a small percent of divorcees collect on either maintenance or
child support, even when divorce occurs during the latter part of the earning
years. At this period of the woman's life, her earning skills may not be
marketable, or at least not for higher paying jobs. Because of this, women
should be encouraged to develop marketable skills during their working
Equal Rights Amendment
The original version of the Equal Rights
Amendment was introduced in Congress in 1923. However, it was not until
1972 that it was approved by Congress and sent to the states for ratification.
Before this amendment becomes law, it must be ratified by 3/4, or 38, of
the states. Originally, ratification was to have taken place within seven
(7) years of congressional approval. Three states short of ratification
in 1978, Congress granted an extension until June 30, 1982 for ratification.
The substance of the proposed Equal
Rights Amendment reads as follows:
Section 1. Equality of rights under
the law shall not be denied or abridged by the United States or any State
on account of sex.
Section 2. Congress shall have the
power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take
effect two years after the date of ratification.