The Lawful Path Journal
Vol. 3, #1
COVERTURE and the Courts
“Can a Husband Represent His Wife?”
by Gregory Allan
Copyright A.D. 2005, All Rights Reserved
This issue is inspired by a reader whose wife is having problems with a court.
He writes, in part:
“My wife is being sued civilly for some credit card debt. …the new Judge would
not allow me to stand next to my wife or speak at all, saying that I am not a
Party to the Action, so therefore (I) am not allowed beyond the gate separating
the audience from the parties… So my question is:”
“Isn’t it a maxim of law that a husband has the right to stand beside, and even
speak for, his wife in court?”
As luck would have it, I have some personal experience with this subject. Of all
the people I know in the law-reform/study movement, I am the only one I know of
who has successfully stood in place of his wife in a courtroom. I’ll tell you
how I did it.
A word of caution is in order for our women readers. As you peruse this report
you may be tempted to think I am anti-woman, or that I somehow believe we should
go back to the dark ages. This could not be further from the truth. The commonly
accepted roles for women have changed much over the past hundred years. In some
ways perhaps for the better; in others, perhaps not.
For the purpose of this report, what I believe doesn’t matter one fig. Like it
or not, what you believe won’t matter either. It is a simple fact that when a
class of people gain ground in one area, they nearly always lose ground in
another. This report illustrates some of the protections which women have lost,
and how those protections might be taken back, if the married couple so-chooses.
In my experience, and the combined experience of others, a simple statutory
“grant of powers of attorney” form does not work to allow a non-attorney husband
to represent his wife in court. The reasons should become clear as you read on.
The only method I know of which works, is presented for you here.
Before I delve deeper into this issue, I’ll list a few maxims which seem to
support my reader’s theory:
“A wife follows the domicile of her husband.” Trayner, Latin Legal Maxims and
“Husband and wife are considered one person (as one flesh and blood) in law.”
Coke on Littleton, 112; Jenkins’ Eight Centuries of Reports, English Exchequer.
“A wife is not her own mistress, but is under the power of her husband.” Coke’s
“All things which are the wife’s are the husband’s.” Bracton, de Legibus et
Consuetudinibus Angliae; 2 Kent’s Commentaries on American Law.
“Although the property may be the wife’s, the husband is the keeper of it, since
he is the head of the wife.” Coke on Littleton, 112.
The principle my friend is thinking of, is called “coverture.” Here’s what
Black’s Law Dictionary (6th) says about it:
“Coverture. The condition or state of a married woman. Sometimes used
elliptically to describe the legal disability which formerly existed at common
law from a state of coverture whereby the wife could not own property free from
the husband’s claim or control. Such restrictions were removed by state Married
Woman’s Property Acts.”
Hmmm. This definition makes it appear that the common law is abolished, and
coverture is obsolete. It states that “restrictions were removed.” Does that
also mean that protections were dissolved?
I believe the answer is both yes, and no. Statutory government commonly grants
“license,” or special privilege, which supercedes the common law. Remember
though, that “license” is defined as “permission from competent authority to do
that which would otherwise be illegal, unlawful, a trespass, or a tort.” In
other words, government gives you permission to be a criminal.
1 Blackstone Commentaries (442) has this to say about coverture:
“By marriage, the husband and wife are one person in law, that is, the very
being or legal existence of the woman is suspended during the marriage, or at
least is incorporated and consolidated into that of the husband: under whose
wing, protection, and cover, she performs every thing; and is therefore called
in our law-french a ‘feme-covert,’ …and her condition during her marriage is
called her coverture.”
The common law placed restrictions upon women for their protection. A modern
woman who is married by virtue of a State marriage license is presumed to have
the benefit of these criminal statues which supercede common law. In other
words, in the absense of any private contract to the contrary, the modern woman
is stripped of all her commonlaw protections.
Covenants to the Rescue
Written contracts are a way for people to express their mutual understanding of
an agreement in a lasting way. This helps remind the participants, who might
have foggy memories over the years, of their obligations. It also is a way of
declaring the terms of that agreement to others, such as judges.
Most people these days are either content with the state’s definition of
marriage, or are not aware of any difference. But some couples want more from a
marriage than two years of rocky cohabitation, and a divorce followed by
eighteen years of state-ordered child support. This is why any married couple
who share beliefs and/or expectations which are greater than, or different than
the terms of marriage set forth in state statutes, should enter into a private
The old common law principle of coverture was a recognition that the nuclear
family is a system of government separate from state or federal governments. The
various state statutes which set forth terms of (non private contract) marriage,
are purposely intended to undermine the strength and effectiveness of these
In the absence of a written contract, any judge will rightly assume the terms of
a marriage agreement to be limited to whatever may be set forth in state
statute. But if a written contract is correctly presented into evidence, a judge
may be obligated to allow it.
What is to stop a married couple from entering into a private marriage contract,
in which the wife places herself under her husband’s protection in coverture?
Most modern American women will reject the notion of making themselves
subservient to their husbands. They see it as taking a step backward;
surrendering hard-won legal rights. Do they take the time to realize that every
so-called “right” comes with an equal and opposite duty?
Under the old common law a husband could, and usually did, assume all
responsibility for any crimes committed by his wife. If a debt was to be paid,
even time served in prison, it was the husband who paid it. The wife stayed home
to mind the house and raise the children.
Modern marriage statutes (absent private contract) are trilateral (three-party
contracts). The state is the primary party, and the husband and wife each owe
their primary duty to the state. In effect, the couple doesn’t marry one
another. They each marry the state, which places them together in a constructive
We know that contracts which contain illegal terms can be declared void. But all
other contracts are binding. Article 1, Section 10 of the United States
Constitution states in part:
“No State shall… pass any… Law impairing the Obligation of Contracts…”
So the question arises, “Can the principles of coverture can be deemed to be
illegal?” I believe not, although an argument can be made for either case.
For example, many states have a Dower Interest law, which insures that a wife
owns a certain undivided percentage of all her husband’s property. The terms of
this law varies from state to state, but in most cases the wife is deemed to
retain her dower interest, even if she explicitly deeds or releases that
interest to her husband. It’s hers, and she can’t give it up. The only way she
can divest herself of the property is to join with her husband in a deed granted
to a third party.
However, this example calls the marriage statutes themselves into play, and
pre-supposes the absence of a private marriage contract containing terms to the
contrary. In contrast, my position (that the husband can and should be able to
buy and sell property without his wife’s signature) is supported by the
“Every one may renounce or relinquish a right introduced for his own benefit.”
Coke on Magna Charta and Old Acts, 183; Wingate’s Maxims of Law, p. 483; The
People v. Van Rensselaer, 9 N.Y. 291, 333.
As to the sources of case law supporting each argument, atheists and secular
humanists, have no higher authority than government to look to. But Christians
recognize a higher authority. Fortunately, such higher authority is even
recognized by the U.S. Supreme Court.
The following cite is paraphrased from scribblings I’ve carried around in my
dayplanner for years, but should be helpful to anyone with reason to look for
the actual cite:
“Religious Freedom: U.S. vs. Seeger 380 U.S. 163
5 Indicia for mandatory consideration; all five must be true:
Â Â Â Religious Conscience – Belief in God
Â Â Â Beliefs are truly and sincerely held
Â Â Â Beliefs make up individual identity
Â Â Â Growing out of religious training and belief
Â Â Â Based upon a duty: “I have no choice.”
Â Â Â Political
Â Â Â Sociological
Â Â Â Philosophical
Â Â Â Economic
Â Â Â Personal Moral Code”
Whenever I construct paperwork intended for the courts, I always try to keep the
above priciples in mind.
Scriptural Rights and Duties
What does the Bible say about the proper relationship between husband and wife?
Â Â Â Husband and wife are regarded as one flesh. Gen. 2:23-24; Matt. 19:5; Mark
10:8; Eph. 5:31.
Â Â Â Marriage bonds are of God, and not to be put asunder by any man. Matt. 19:6;
Â Â Â Man is not independent of woman, nor is woman independent of man. 1 Cor.
7:4; 1 Cor. 11:11.
Â Â Â Husbands are to have authority over their wives. Gen. 3:16; 1 Cor. 11:3,
7-9; Eph. 5:23.
Â Â Â Husband to provide for the family. 1 Tim. 5:8.
Â Â Â Wives are to obey their husband. 1 Cor. 14:34; Titus 2:5.
Â Â Â Wives to be in subjection to their husbands. Gen. 3:16; Eph. 5:22, 24; Col.
3:18; 1 Pet. 3:1, 5-6.
Â Â Â Wife not to usurp authority over the man. 1 Tim. 2:12; Titus 2:5.
Â Â Â The wife is not to raise questions in the church but to ask through her
husband. 1 Cor. 14:34
(Compilation taken from A Handbook of Bible Law, by Charles A. Weisman)
My Own Experience in Court
In 1997, my wife was served with a summons to appear in court on a civil matter.
As we have a private marriage contract which places her under my coverture, it
was my duty to respond on her behalf. Our Contract is a private matter between
us, and we have no wish to disclose the terms of the full contract to any
outside parties. However, it is in our mutual best-interest to disclose certain
terms and conditions to others, from time to time.
So I drafted a declaration in affidavit form, to be signed by my wife, in which
she gave notice of the existence of our private marriage contact, and quoted the
terms which placed her under my coverture. Armed with this document, my Bible,
and the other items which I would need to participate in the civil action, I
walked into court in her stead. That’s right, I appeared, and she did not.
When the case was called, I stood up and walked across the bar. I should mention
here, that I had already met this judge on several occasions, and he knew me
immediately upon sight. So the following paraphrased conversation should be
instructive, if you’re paying close attention.
Judge:Â “Who are you?”
Me:Â “I am here with regard to this matter.”
Judge:Â “Are you a party to this matter?”
Me:Â “Yes, sir.”
Judge:Â “What is your name?”
Me:Â “For purposes of this hearing, my name is (my wife’s name).”
I have to break here long enough to say that the judge’s expression was
priceless. But even funnier, was the expression on the face of the court
reporter. Court reporters, in my experience, never show any emotion, or even
look up from their work to view the proceedings. This one stopped typing, and
turned completely toward me with an expression so odd I can’t even describe it.
The judge recovered his composure after a few seconds, and continued:
Judge:Â “Do you have any identification?”
Me:Â “Yes, sir.” (Whereupon I held up the declaration I’d previously prepared.)
Judge:Â “Hand it to the bailiff please.” (The bailiff gave the declaration to
the judge, and he studied it for several minutes.)
Judge:Â “I cannot allow you to represent your wife.”
Me:Â “Sir, it is not my intention to represent my wife.”
Judge:Â “Then why are you here?”
Me:Â “For purposes of this hearing, I am my wife.”
Judge:Â (after a long pause) “Take a seat over there (points to the table where
my wife would have been directed to sit). I’ll hear from the other party’s
attorney first, and then you’ll be allowed to speak.”
The opposing attorney had her say (interesting, in this case, that the attorney
was a woman).
Judge:Â (to me) “Do you have anything to say?”
Me:Â “Yes, sir.”Â I proceeded to present my case, uninterrupted. When I was
finished, the judge said:
Judge:Â “I have exercised my discretion to allow you to speak today, although I
cannot allow you to represent your wife. In the interest of equity, my ruling is
The judge proceeded to order everything I had asked for, as though my wife had
done the asking. His comment was made to save face, and to obscure from
witnesses the fact that I had succeeded in my objective. He didn’t actually lie,
in that he did not allow me to represent my wife. He simply accepted, based on
the evidence before him, that I was my wife.
It should be noted that a warrant was never issued against her for failure to
appear, as would certainly have been the case if “she” had not appeared.
I’ve decided to make a declaration, similar to the one mentioned here, available
for sale on our website. It contains all the substance of the one I used
successfully as described above, but has been updated with the benefit of my
study and experience over subsequent years. The package also includes a second
document, which is necessary to make the first one “appear” in court, pursuant
to rules of evidence. You can find it at this link:
That’s all for now. May God bless and keep you on the lawful path.
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(Isaiah 33:22) For the Lord is our judge, the Lord is our lawgiver, the Lord is
our king; he will save us.
The Lawful PathÂ Â Â Â -Â Â Â Â http://lawfulpath.com
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