Bending the Code civil: Married Women, Their Capacity to Engage in Contracts and the Partnership Between Spouses (Belgium, 1804-c. 1865)

The regime of marital authority, which had been written into the 1804 French Civil code, took the puissance of the husband and the obedience of his wife as starting points, rather than the conjugal partnership. The provisions of the Civil code were strict, and more severe than legislation of previous periods, but they allowed some progressive interpretation. In France, over the course of the nineteenth century legal scholars attempted to broaden some of the exceptions of the code's harsh rules. The distinction between mandat/procuration and autorisation was expanded. Judges of tribunals in the Belgian province of Brabant followed their lead. In the first half of the nineteenth century, the Brussels Court of Appeal copied ideas of French legal authors by acknowledging autonomous actions of married women, and it was in some respects more lenient than French doctrine. The solutions that were imposed onto litigants, in particular the exception to the relative nullity rule for profitable contracts, closely resembled what had been known in Brabant during the Old Regime. The local laws of that province, dating from before 1789, had taken spousal cooperation as the basis for rules regarding the position of married women. The proposed reform by François Laurent breathed the spirit of this older legislation as well, since it was based on the mentioned legal interpretations that were common in contemporary court practice. However, these ideas did not take full root until after World War II. Gender equality in private law was not an important political issue, not in the early 1900s, and not before.

The mentioned moderate relaxation of the Civil code's articles, in legal practice and doctrine of the 1800s, should therefore not be overestimated. It is striking but true that in the course of the nineteenth century a more softened interpretation of the stubborn provisions of the 1804 Civil code with regard to married women mostly served economic goals. The interests of creditors were considered as being paramount. It was the acknowledgment of their needs that had the indirect effect of raising the contractual capacity of wives. This is clear in the interpretation of the Civil code's rule of relative nullity by the Brussels Court of Appeal. The Civil code provided that contracts signed by a married woman were in principle illegitimate if the husband had not consented in them, but also that they remained legally valid until successful judicial contestation. It was a rule of the Old Regime that a beneficial and reciprocal contract could not be attacked, even if it had been signed by a married woman without her husband's cooperation. Early nineteenth century French legal doctrine allowed compensation for the creditors, but only to the extent of the profits made by the husband. In its judgments, the Brussels Court of Appeal went further and took the older rules as guiding principles. It decided that even without formal authorization a wife could bind the community property for contracts that were in the husband's advantage. Yet, such verdicts usually concerned cases that were situated in the sphere of business. The approach of the Brussels Court had indeed more to do with the safeguarding of the rights of those parties who had contracted with a woman than with a full recognition of married women's rights. Therefore, one must conclude that, all in all, the nineteenth century changes in legal interpretation were not so much engendered by a cultural turn recognizing the role of the wife, and they were certainly not the result of a political sense of urgency as to equality between the sexes. In both the law and the legal practice, the gender bias within the Civil code remained unchallenged for the most part, and this well into the twentieth century.