Married women doing business certificates

The rights of married couples have been a constant source of controversy in the legal system. In the 1860’s a married woman had the right to “bargain, sell, and convey, her separate real and personal property, enter into any contracts in reference to the same, carry on any trade or business, and perform any labor or services on her sole and separate account, and sue and be sued in all matters having relation to her separate property, business, trade, services, labor, and earnings, in the same manner as if she were sole.” Then in 1862 a new statute was passed that modified the rights of a married woman to her own separate property and her power to contract. At the time of the passage of this statute a married woman might carry on business on her own separate account, and her separate property was not liable for the debts of her husband. Under this state of the law it sometimes, perhaps frequently, happened that a business was being carried on apparently by the husband and yet, when his creditor (whether the debt was contracted by the husband in his apparent business or otherwise) undertook to collect the debt by an attachment of the property used in the business, he was confronted with the claim on the part of the wife that the business was really carried on by her and not by her husband; and, inasmuch as her separate property could not be taken for his debts, the attachment would not stand. Doubtless in many cases this claim of the wife was fraudulent, but the relation between husband and wife is such that detection of the fraud was difficult. Under these circumstances St. 1862, c.198, was passed. Its purpose was to prevent this kind of fraud, or at least render it ineffective.

The Statute of 1862 altered the law so that married woman may carry on any trade or business on her sole and separate account. But she must file in the clerk’s office of the city or town where she does or proposes to do business, a certificate setting forth the name of her husband, the nature of the business proposed to be done, and the place where it is to be done, giving the street and number, if practicable; and whenever the place of business of the nature of the business is changed, a new certificate must be filed accordingly. If the woman does not file this certificate, her husband may file one containing a similar description of the business. If no certificate is filed, the wife will not be allowed to claim any property employed in such business against creditors of her husband, and her husband will be liable upon all contracts lawfully made in the prosecution of such business, in the same manner and to the same extent as if made by him. The certificate is intended to protect the property of the wife, and will not protect that of the husband from attachment by his creditors.