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A jointure is simply a provision for a wife in the event of her husband's death. This type of binding legal agreement usually involves part of the deceased's estate or a sum of money that will ensure the wife's financial survival should her husband pass away. Typically a jointure should take effect immediately following the husband's death, it must be for the wife's life or determined by her own accord, and it should be made before marriage — or if made after marriage, the wife can void the agreement if she so deems it acceptable upon her husband's death. It should also satisfy the conditions of dower without being apart of it. A jointure often takes effect if there is no dower already in place.
Historically speaking, jointure is a practice that was established in laws during Medieval times and can date back all the way to the Code of Hammurabi in Ancient Babylon. In most cases, a fraction of the husband's property, usually one-third or one-half, was promised to the wife upon marriage to take care of the wife's needs in the event of her husband's death. It was possible, though, for jointure to be established after wedding vows were exchanged. This usually involved the wife or someone on behalf of the wife paying the husband money or property for a jointure on her for life and could be nullified by the wife.
This practice is often related to dower. The term "dower" originated from the German practice of the groom gifting the bride after the consummation of marriage the morning after their wedding night, should the bride survive her husband. A dowry is a gift made by the bride's family to the groom during the engagement to be used by both spouses during the marriage.
In contrast with the dowry, however, the husband was usually unable to utilize the dower during the marriage, and the dower was often overseen by a male relative of the bride until the wife became a widow. At such a time, the widow was able to use or distribute the dower at her own discretion. This policy was used to ensure the financial status of the widow but also to prevent the widow from becoming a burden on her surrounding community.
Provisions for a wife were often given by law in Europe and Eastern culture, but they were also commonly tied to religious practices. For example, jointure is still practiced in the 21st century in the Islamic faith. In the Islamic culture, this practice is known as mahr, and both husband and wife must agree on it. This practice can be nullified by acts of the wife or conditions of the marriage. For instance, if the wife commits adultery or if she requests a divorce, then the jointure can become invalid, and the mahr is returned to the husband by request of a judge.
Jointure exists in Western culture as well. It has been introduced both in Canadian and United States law. In U.S. law, jointure is usually referred to as an elective share, and it allocates a portion of the remaining property from an estate to the surviving spouse if the deceased does not leave behind a will. Some regions also have a clause that permits children of the deceased to claim an elective share.
@simrin - That's correct, the elective share law in the U.S. is based on jointure from English common law. I think to understand jointure and why our law on marital property is based on it, we have to understand the importance of property at that time.
Land was the most significant piece of property and it determined someone's class and power in society. Only men were allowed to own property though. Even though the legal system didn't allow women to own property, it guaranteed protection and financial support to women throughout their lives.
Also, when a woman got married, her father may have gifted property in her husband's name or she may have spent her money to buy property
that her husband would own as well. So, even though technically the husband is the owner of land, essentially it's the woman's as well.
Men had to pay women dower as well. Sometimes instead of giving this money to women (which meant that you had to sell land for it and that was very valuable), husbands would make a deal with their wives. They would give their wives jointure- a piece of land- that was theirs for lifetime use, instead of paying a dower.
But since women couldn't own land officially, the land was actually held under a male relative's name. When both the woman and man died, the land would be passed on to their oldest son.
So jointure in both American and English history, is actually separate than dower. We have been using the term to mean only land, not money.
I thought that jointure was rewarded to a woman if she had brought money with her when she was getting married. I read that in England, women usually brought some money for use in the marriage and then was given a much larger amount as jointure if the husband died. But this was more of a custom rather than a law because there were women who brought money but was left without jointure later on. Still, the English courts used to take this into account when a widow filed a case for jointure.
Another claim I have heard about jointure is that it was established while the husband was alive and the wife in return vowed obedience to her
husband on all matters during the marriage. Some feminist writers consider this to be a form of slavery within the marriage. Maybe this did happen, I don't think we can really know the spoken agreements between husbands and wives in a marriage. I don't think that English women had any interest in being oppressed in return for receiving jointure later. I think that was their right no matter what.
I think jointure probably came about because women did not work in early history and usually didn't have any property or money. So if the husband passed away, the woman would have to go back to her own family to survive. She might take her children as well if the husband's family didn't have rights over them. This was thought to be a big burden on the woman's family who probably could not afford to take care of the woman and children. They might have forced the woman to leave the house and fend for her own or remarry.
This is still very much the case in the South and Southeast part of the globe. Until British colonialism of
India for example, women were burned alive with their deceased husbands because no one wanted to take care of them. The practice doesn't exist any longer but widows and divorcees can still be considered a burden by their families.
Jointure can help prevent all these issues because women can remain at her husband's house which is now her own and take care of her children with the money or income the husband left behind. It's probably one of the greatest laws ever made to protect women in a male dominated society.
Even though women are at a better position today financially, most democracies have taken legal precautions similar to jointure like the article mentioned. I know that just recently in Turkey, a law was passed that gave women rights over half of the property bought during a marriage. This automatically guarantees woman jointure if her husband were to pass away or if the couple got divorced.
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