Matrimonial property law in Newfoundland to the end of the nineteenth century

Johnson, Trudi Dale (1998) Matrimonial property law in Newfoundland to the end of the nineteenth century. Doctoral (PhD) thesis, Memorial University of Newfoundland.

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Abstract

In Newfoundland, the passage of three married women's property acts between 1876 and 1895 occurred without any apparent public demand, reform movement, or community response. Although the acts expanded the definition of married women's property, they were only significant to a small minority of married women in Newfoundland at the time of their passage. This was because the legislation largely put in statutory form an existing matrimonial property system which had evolved since the earliest days of English contact. Three broad factors had contributed to the formation of this system. The first was the reception of English law of property, marriage and inheritance. Although they were clearly defined by English law they were applied as far as they could be to local circumstances in Newfoundland. A second factor was the meaning and significance of property in light of Newfoundland's place on England's agenda. From the time of England's earliest interest in Newfoundland, the cod fishery determined the definition of property on the island. As the number of permanent residents increased, there were legislative and judicial attempts to provide a framework for a matrimonial property regime. Finally, the prominent place of customary practice in the ways that residents acquired property and passed it on to future generations was a third factor influencing the evolution of matrimonial property rights. The partible inheritance system that evolved up to the end of the nineteenth century suited the social and economic conditions of the island and reflected the long-standing custom of possessory claim. Property was conveyed through gifts, deeds of conveyance, trusts, wills and by intestacy by family members who were motivated by custom, affection, and desires to provide for the economic security of the next generation as well as to recognize the beneficiaries' contribution to the survival and well-being of the family. Inheritance practices indicate a society that placed the needs and responsibilities of the family above individual rights, thus tempering the English law of coverture. -- The development of a matrimonial property regime in Newfoundland was a gradual, uncoordinated process which received little direction from England. The reception of English property law depended on the tests of local experience and utility. Similarly, late in the nineteenth century Newfoundland adopted English statutory reforms to meet local needs in a way which resolved the ambivalence and contradiction of decided cases.

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