dower

 

that portion of a deceased husband's real property that a widow is legally entitled to use during her lifetime to support herself and their children. A wife may claim the dower if her husband dies without a will or if she dissents from the will. At common law, dower consists of a one-third interest in all the land that the husband owned during the marriage. In many states of the United States dower rights have been abolished and other provisions, especially rights of inheritance, have been made for the widow. Where it still exists, the dower right attaches to the land as soon as it comes into the husband's possession; for that reason it cannot be defeated by a conveyance of the land by the husband in his lifetime unless his wife joins in the deed. If the wife is the guilty party in a divorce or the marriage is annulled, the right of the wife to dower is ended. The husband's lifetime use of his deceased wife's property, a right that is contingent on the birth of lawful issue, is known as curtesy.

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Dower or mourning gift (Latin: doarium or, latinized Germanic, morganaticum; Fr. douaire; German: Morgengabe) was a provision for support during life (particularly for the widowhood period) accorded by law to a wife surviving her husband. It was settled on the bride, by agreement, at the time of the wedding, or provided by law.

The term "morning gift" derives from the Germanic practice of the bridegroom officially granting the morning after the wedding night; making such a settlement was evidence that the marriage had been consummated and the bride had proven to be a virgin. However, in popular parlance, the term may be used for a life interest in property settled by a husband on his wife subsequently. 'Settled' here refer to a gift into trust. The verb used for a property endowment from husband to wife is to dower - dowered.

In popular usage, the term dower may be confused with:

• A female is known by the prefix Dowager when she no longer occupies the position she held during the marriage. For example, a widowed countess is called "Dowager Countess" (the next Earl's wife is then the Countess); Elizabeth Bowes-Lyon was technically the Dowager Queen after the demise of George VI (though she was referred to by the more informal title "Queen Mother"), and Princess Lilian is currently the Dowager Duchess of Halland in heraldic parlance. Such a dowager will be in receipt of the income from her dower property.
• Property brought to the marriage by the bride is called a dowry or a portion.
• Property made over to the bride's family at the time of the wedding is a bride price. This does not pass to the bride herself.

Meaning

Being for the widow and being accorded by law, dower differs essentially from a conventional marriage portion such as the dos of the old Roman law, the French dot, or the English dowry.

The bride received a right to certain property from the bridegroom or his family. It was intended to ensure her livelihood in widowhood, and it was to be kept separate and in the wife's possession.

Dower is the gift given by the groom to the bride, customarily on the morning after the wedding (hence morning gift, though all dowerings from the man to his fiancée, either during the betrothal period, or wedding, or afterwards, even as late as in the testamentary dowering, are understood as dowers if specifically intended for the maintenance of the widow).

Dower has been a property arrangement for marriage used apparently first in early medieval German cultures (such as Langobards and Goths), and the church drove its adoption into other countries, in order to improve the wife's security by this additional benefit.

The practice of dower was prevalent in the Germanic-descending and Scandinavic-descending parts of Europe, such as Sweden, Germany, Normandy and successor states of the Langobardian kingdom.

The husband was legally prevented from using the wife's dower - as contrary to her dowry.

Of course, in Germanic cultures, as well as in medieval commonly, women were regarded like minors. For the separateness of the dower, this often meant that the woman's legal representative, usually her male relative, guarded the dower at some degree, and particularly was obliged to check that the husband does not touch (nor waste) that property, and generally that the dower will be preserved for the woman's widowhood, to her old age.

Usually, the wife was free from kin limitations to use (and bequeath) her dower to whatever and whomever she pleased. It may have become the property of her next marriage, be given to an ecclesiastical institution, or be inherited by her children from other relationships than from whom she received it. Dower was basically not under the clannish restrictions on alienation etc.

History

Code of Hammurabi

The Code of Hammurabi prescribes what the widow is entitled to from her husband's estate. This included both the value of her dowry and whatever her husband deeded to her.

Roman era

Dower is thought to have been suggested by the marriage gift which Tacitus found to be usual among the Germans. This gift he terms dos, but contrasts it with the dos of the Roman law, which was a gift on the part of the wife to the husband, while in Germany the gift was made by the husband to the wife (Larousse, Grand dictionnaire universel, Paris, 1870, s. v. Douaire). There was indeed in the Roman law what was termed donatio propter nuptias, a gift from the family of the husband, but this was only required if the dos were brought on the part of the wife. So too in the special instance of a widow (herself poor and undotated) of a husband rich at the time of his death, an ordinance of the Christian Emperor Justinian secured her the right to a part of her husband's property, of which no disposition of his could deprive her.

Establishment in Western Europe

The general establishment of the principle of dower in the customary law of Western Europe, according to Maine (Ancient Law, 3rd Amer. ed., New York, 1887, 218), is to be traced to the influence of the Church, and to be included perhaps among its most arduous triumphs. Dower is an outcome of the ecclesiastical practice of exacting from the husband at marriage a promise to endow his wife, a promise retained in form even now in the marriage ritual of the Established Church in England. (See Blackstone, Commentaries on the Laws of England, II, 134, note p.) In an ordinance of King Philip Augustus of France (1214), and in the almost contemporaneous Magna Charta (1215), dower is referred to. But it seems to have already become customary law in Normandy, Sicily, and Naples, as well as in England. The object of both ordinance and charter was to regulate the amount of the dower where this was not the subject of voluntary arrangement, dower by English law consisting of a wife's life estate in one-third of the lands of the husband "of which any issue which she might have had might by possibility have been heir" (Blackstone, op. cit., 131).

England and other Common Law Countries

There is judicial authority of the year 1310 for the proposition that dower was favoured by law (Year Books of Edward II, London, 1905, Vol. III, 189), and at a less remote period it was said to be with life and liberty one of three things which "the law favoreth". In England in the late 18th century, it became common for men to hold land with a trust that prevented their wives acquiring dower. Accordingly the English statute, the Fines and Recoveries Act of 1833 was passed to impair the inviolability of dower by empowering husbands to cut off by deed or will their wives from dower. Wives married before the Act still had (in certain cases) to acknowledge the deed before a commissioner to bar their right to dower in property which their husband sold. This was simpler than the previous procedure, which had required a fine to be levied in the Court of Common Pleas, a fictitious proceeding, by which she and her husband formally remitted their right to the property to the purchaser.

It was the law of dower unimpaired by statute, which according to the American commentator, Chancellor Kent, has been "with some modifications everywhere adopted as part of the municipal jurisprudence of the United States" (Commentaries on American Law, IV, 36). But while the marriage portion, dot, is, yet dower is not, known to the law of Louisiana, and it has now been expressly abolished in some other States and in some territories. The instances of legislative modifications are numerous and important.

In English law, dower was one third. However, in the early modern period, it was common for a wife to bar her right to dower in advance under a marriage settlement, under which she agreed to take instead a jointure, that is a particular interest in her husband's property, either a particular share, or a life interest in a particular part of the land, or an annuity. This was often part of an arrangement by which she gave up her property to her husband in exchange for her jointure, which would accordingly be greater than a third. Strictly dower was only available from land that her husband owned, but a life tenant under a settlement was often given power to appoint a jointure for his wife. The wife would retain her right to dower (if not barred by a settlement) even if her husband sold the property; however this right could also be barred by a fictitious court proceeding known as levying a fine. The widow of a copyholder was usually provided for by the custom of the manor with freebench, an equivalent right to dower, but often (but not necessarily) a half, rather than a third.

Relationship to religious profession

During the pre-Reformation period, a man who became a monk and made his religious profession in England was deemed civilly dead, "dead in law" (Blackstone, op. cit., Bk. II, 121); consequently his heirs inherited his land forthwith as though he had died a natural death. Assignment of dower in his hand would nevertheless be postponed until the natural death of such a man, for only by his wife's consent could a married man be legally professed in religion, and she was not allowed by her consent to exchange her husband for dower. After the Reformation and the enactment of the English statute of 11 and 12 William III, prohibiting "papists" from inheriting or purchasing lands, a Roman Catholic widow was not held to be debarred of dower, for dower accruing by operation of law was deemed to be not within the prohibitions of the statute. By a curious disability of old English law a Jewish widow born in England would be debarred of dower in land which her husband, he having been an Englishman of the same faith and becoming converted after marriage, should purchase, if she herself remained unconverted.

Modern status

Of dower (douaire) as it existed in the old French law no trace is to be found in the existing law of France. But brought to Canada from the mother country in pre-Revolutionary times, customary dower accruing by operation of law is yet recognized in the law of the former French province of Quebec. The civil death which by English law seems to have applied to men only, might be by the French law incurred by women taking perpetual religious vows. Therefore, a widow entering into religion would lose her dower, although in some regions she was allowed to retain a moderate income. (See Larousse, op. cit.) And now by the law of Quebec a widow joining certain religious orders of the province is deemed civilly dead and undoubtedly would suffer loss of dower.

Morganatic marriage: a post-medieval application

Some well-born persons have been prone to marry an ineligible spouse. Particularly in European countries where the equal birth of spouses (Ebenbürtigkeit) was an important condition to marriages of dynasts of reigning houses and high nobility, the old matrimonial and contractual law provision of dowering was taken into a new use by institutionalizing the morganatic marriage. Marriage being morganatical prevents the passage of the husband's titles and privileges to the wife and any children born of the marriage.

Morganatic, from the Latin phrase matrimonium ad morganaticam, refers to the dower (Latin: morganaticum, German: Morgengab, Swedish: morgongåva ). When a marriage contract is made that the bride and the children of the marriage will not receive anything else (than the dower) from the bridegroom or from his inheritance or patrimony or from his clan, that sort of marriage was dubbed as "marriage with only the dower and no other inheritance", i.e matrimonium ad morganaticum.

Neither the bride nor any children of the marriage has any right on the groom's titles, rights, or entailed property. The children are considered legitimate on other counts and the prohibition of bigamy applies.

The practice of "only-doweried" is close to pre-nuptial contracts excluding the spouse from property, though children are usually not affected by prenuptials, whereas they certainly were by morganatical marriage.

Morganatic marriage contained an agreement that the wife and the children born of the marriage will not receive anything further than what was agreed in pre-nuptials, and in some cases may have been zero, or something nominal. Separate nobility titles were given to morganatic wives of dynasts of reigning houses, but it sometimes included no true property. This sort of dower was far from the original purpose of the bride receiving a settled property from the bridegroom's clan, in order to ensure her livelihood in widowhood.

The practice of morganatic marriage was most common in historical German states, where equality of birth between the spouses was considered an important principle among the reigning houses and high nobility. Morganatic marriage has not been and is not possible in jurisdictions that do not allow sufficient freedom of contracting, as it is an agreement containing that pre-emptive limitation to the inheritance and property rights of the wife and the children. Marriages have never been considered morganatic in any part of the United Kingdom.

Islam

Main article: Islamic marital jurisprudence

A settlement from the groom to the bride is an essential part of current traditional Muslim marriages: a man must pay mahr to his bride. It is considered a gift which she has to agree on. The dower can be any value as long as it is agreed upon by both parties. When the groom gives his bride the dower, it becomes her property. In case of a divorce, she won't have to give up her dower unless she is the one who requested the divorce. In the later case, her husband may ask her to return the dower to him. However, if she has requested the divorce due to her suffering any form of abuse, or has other acceptable reasons for a divorce in Islamic laws (such as her husband suffering from illness or being impotent, etc.), the current judge often will not ask her to give the dower back to her husband. But as the author of the previous sentence clearly implies, the judge can "ask" the wife to return the dowry even if she has suffered abuse at the hands of the husband.

The amount promised or paid to the bride forms part of her personal property and is of assistance to her in times of financial need, such as a divorce or desertion by the husband. While the Mahr is usually in the form of cash, it may also be a house or viable business that is put in her name and can be run and owned entirely by her if she so chooses.

Dower in the Baha'i Faith

According to the Kitab-i-Aqdas, the Baha'i Faith's Most Holy Book, the dower is paid from the groom (male) to the bride (female). The dower, if the husband lives in a city, is nineteen mithqáls (approx. 2.2 troy ounces) of pure gold, and if the husband lives outside a city the same amount in silver.

See also

• Dowry
• Curtesy
• Jointure
• Marriage
• Paraphernalia

References

• This article incorporates text from the Encyclopædia Britannica Eleventh Edition, a publication now in the public domain.
• This article incorporates text from the public-domain Catholic Encyclopedia of 1913.
• Georges Duby, The Knight, The Lady, and the Priest (1981).

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