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May|June 2003

et ux

A Latin phrase gives voice to the legal rights and privileges of wives—and emphasizes that they still play second fiddle to their husbands.

By Kristin Collins

HENRY AND CLARIA WHITLEY LOST THEIR HOME in a tax sale in 1968. Seven years later, the Pennsylvania Supreme Court voided the sale because the notice sent to Henry and Claria about the pending sale referred to Claria with the Latin phrase et ux. Ux is short for uxor; et ux means "and wife." The government can't sell our homes out from under us without giving us "proper notice," and when it came to Claria, the Pennsylvania court thought that et ux wasn't proper enough. Due process, the court said, requires that parties to a lawsuit "be identified with clarity and without disguise."

Et ux appears on deeds to real estate and cars and in the databases and tomb-like entry books that municipalities use to keep track of who owns what. Although it is less common these days than it used to be, lawsuits filed by a husband and wife are still identified by the husband's name et ux. Westlaw, a database lawyers use to look up case law, records that, since 1970, the wife has been identified as et ux in 9,320 lawsuits in which a married couple sued (or were sued) together. As Claria Whitley discovered, sometimes official mail also resorts to et ux. Deeds, captions on cases, and other legal forms like subpoenas all serve the purpose of giving notice, which is how lawyers and the courts communicate with the public. That's why the Pennsylvania court found et ux especially peculiar: If you want to make sure that someone sees a letter, you don't send it in "disguise."

The explanation of et ux, like the term itself, is rooted in the history of married women's rights, especially property rights. While there is a common understanding that, at one time, married women couldn't own property, the truth is more complicated. Until the middle of the 19th century, married women couldn't own property in the way we understand it today, but they had certain property rights that the law firmly protected. Yet these rights were part of a larger system, "coverture," that stripped a married woman of her legal "personality" (or status) under the theory that she was "covered" by her husband. Marriage wasn't much of a bargain for women. On the minus side, a woman lost control of any real estate she owned prior to marriage, giving up the right to possess the property, to collect rents, or to sell it outright. She also lost ownership of her personal belongings. She had no right of custody to the children she bore and no right to enter contracts, work for money, sue, or be sued. If a married woman suffered injuries at the hand of another, she couldn't file a lawsuit without her husband joining as her champion. On the plus side, a husband was liable for any damage that his wife caused by accident. And a married woman could not be punished for any crimes that she and her husband committed together or that she committed at his behest.

Of course, coverture was more than a balance sheet of legal rights and duties. Married women were domesticated creatures who were kept down and out of sight. It was unseemly and embarrassing for a woman to do much of anything that involved public interaction—do business, publish, speak out on social issues. Like the parallel convention of referring to a married woman by her husband's name, et ux was part of the tradition of camouflaging a married woman's identity. In the man's world of litigation and property transactions, et ux was a married woman's veil.

BUT ET UX HAD A DOUBLE LIFE: IT ALSO GAVE VOICE to the few rights married women had. Until the mid-1800s, if a married woman owned property before she wed, et ux signaled her right to reclaim most of her stake in it if her husband died before she did. Et ux also indicated her right to "dower" upon his death—the right to retain a third of all his real property for her lifetime.

It was important that the world be given notice of a wife's existence because her husband couldn't sell property she brought into the marriage without her consent. Nor could he sell her right to dower unless she agreed, an enormous limitation because it meant that, without her consent, her dower would operate like a lien on the property. Yet legal terms and procedures were also expected to respect a married woman's special status as a feme covert, a covered woman. Et ux accomplished both by referring to a married woman only by reference to her relationship with her husband.

In the caption of lawsuits, et ux fulfilled a different function by signaling the rights (and liabilities) the husband acquired as a result of marriage. One of them was the husband's power to settle or drop a suit without his wife's consent. This may seem bizarre, but similar rules still apply to suits by and against mental incompetents, who can sue or be sued only through their parent or guardian. The analogy is apt. But unlike the parent or guardian of a mental incompetent, a husband could make a special legal claim under coverture if his wife was injured in an accident: He could sue for loss of her sexual services and affections.

Coverture started to lose its force in the 1840s, when many states passed statutes called the Married Women's Property Acts that gave women the right to maintain possession of their property after they wed. In 1920, suffragists secured the vote for women with the Nineteenth Amendment, which hastened the demise of coverture. By the 1930s many states allowed women to sue or be sued without their husbands' assistance. With few exceptions, coverture is now dead and gone.

BUT ET UX LIMPS ALONG, THESE DAYS CARRYING DIFFERENT LEGAL FREIGHT. On a deed or a real estate title registry, et ux gives the world notice of a married woman's right to a greater, if not necessarily equal, share of all marital property—a giant shift from the days when she gave it all up to become an ux. Et ux has even undergone a sexual revolution. In the early 1900s, even in states that had granted women the right to sue over their own injuries without their husbands' assistance, courts preserved the husband's claim for the loss of his wife's "services" without providing for a reciprocal claim. It wasn't until 1950, when the U.S. Court of Appeals for the D.C. Circuit recognized that the husband's "right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband," that woman's claim to loss of consortium was secure. Now, wives routinely join their husbands' personal injury suits to assert their own claims. In the captions of those cases, et ux signals wives' right to sex and affection.

Et ux informs the world of married women's remade rights. No longer the second-class citizen of yesteryear's marriages, ux steps forward to claim the twin tools of power: property and sex. Sounds good—until we remember that et ux still obscures a married woman's individuality in a way that perpetuates a retrograde notion of marriage. Even as et ux announces married women's claim to equality, it disguises their public identity.

In that way, et ux may capture the essence of modern wifehood. Legal parity of husbands and wives has, with few exceptions, been secured. Wives have a right to equal education and equal pay; they have more doors open to them than they used to, and they bump their heads on fewer glass ceilings. Yet despite, or because of, the legal equality women have achieved, the vast majority who marry (meaning the vast majority of American women) still generally choose the trappings of a traditional marriage. Even the wives who keep their names today rarely pass them along to their children. In politics, when a wife's name becomes a liability, she may well cover it with her husband's. (Just ask Teresa Heinz Kerry or Hillary Rodham Clinton.) And most working wives, even career women, will tell you that they continue to do much more of the homemaking and the child rearing than their husbands.

There is no sign that most American women want wifehood any other way. Et ux packages all of the equal rights and cultural inequalities of modern marriage into one discrete phrase. Et ux retains a double life, and so does the institution of which it gives notice.

Kristin Collins is a law clerk for a federal appellate judge.

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