Women Contracting in Law c.1840-1920: Gender and settler colonialism in the courts of Aotearoa New Zealand

This is a study of Māori and Pākehā women’s contracting and civil litigation in the first eighty years of the English common law in Aotearoa/New Zealand c.1840-1920. It provides the first detailed survey of how colonial women were acting as legal subjects under the civil law. Contracts included marriage, land purchases and sales, consumer contracts, labour, employment, and the buying and selling of goods and chattels and services. During this period the common law operated within highly imperialist values of liberal economic exchange and individual, male, property ownership in a land driven economy. Women’s ability to contract with another party, own property, their appearances in the courts of law and their legal subjecthood, was understood and determined by their marital status under the common law doctrine of coverture. Upon marriage, a woman’s legal status changed from feme sole to feme covert bringing her under the ‘cover’ of her husband. Coverture subsumed a woman’s legal existence under that of her husband meaning a woman’s ability to act under the common law was severely curtailed. Despite coverture, women appeared in contract cases in the colony’s courts in significant numbers and under diverse circumstances, forcing the courts to consider women as legal subjects. Māori women’s legal status under marriage law was distinct. Māori women were British legal subjects under article three of the Treaty of Waitangi and customary laws were recognised by the common law to facilitate Crown and settler land purchases. Marriage and property laws were changing over the period under review. The mobile and masculine colonial frontier meant geographical separations between married couples, desertion, legal separations and de facto relationships were common. The Married Women’s Property Protection Act 1860 and the Married Women’s Property Protection Act 1870 were utilised by women and increased their legal agency. Couples made use of the Divorce and Matrimonial Causes Act 1867 and Divorce Act 1898. A husband’s death restored women’s property rights and many widows took on the task of managing family property. The Married Women’s Property Act 1884 redefined women as autonomous legal subjects who could own property under the common law and contract as autonomous legal persons. This study finds that common law doctrines were often unsuited to the realities of colonial life where families were economically dependent on wives’ labour and trading ability. Women operated as legal subjects who entered into legal agreements regularly, challenging orthodox legal applications and common law presumptions surrounding women’s relationship to property. Meanwhile, colonial conditions, married women’s property laws, divorce, widowhood and Māori customary law altered women’s standing before the law. Women, families, and the courts negotiated women’s complex legal position to facilitate law, order and the buying and selling of property within a system of colonisation that was concerned with organising property along gendered and racial lines.