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STATE COLLEGE LIBRARY UNITED STATES DEPARTMENT OF LABOR MAURICE J. TOBIN, Secretary WOMEN’S BUREAU FRIEDA S. MILLER, Director ★ The Legal Status of Women in the United States of America « January 1, 1948 REPORT FOR DELAWARE Individual State materialj constituting part of a compilation to show the present legal status of women in the United States of America Bulletin of the Women’s Bureau, No. 157-7 (Revised) UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1949 For sale by the Superintendent of Documents, U. S. Government Printing: Office, Washington 25, D. C. - - - - - Price 10 cents THE LEGAL STATUS OF WOMEN IN THE UNITED STATES OF AMERICA In response to continuing domestic and international needs, the Women’s Bureau has prepared a revised edition of its 1938 report on the legal status of women in the United States of America. The revised report is based on an examination of the Constitu tions, official statutes, and significant decisions of courts of last resort of the Federal Government and the several States, as well as pertinent law texts of recognized authority. This pamphlet presents a digest of the material compiled for a single State, which has been incorporated in the complete report. n LETTER OF TRANSMITTAL United States Department of Labor, Women's Bureau, Washington, September 6, 19U9. Sir : I have the honor to transmit to you a revised report on the legal status of women in Delaware. This is one of 54 separate reports constituting a survey of the laws of the 48 States, the District of Columbia, the territories of Alaska, Hawaii, and Puerto Rico, and the United States possessions, the Canal Zone and Virgin Islands. The original report for each jurisdiction represents a thorough search of statutes and decisions of appellate courts construing its statutes or establishing its judicial policy. Revision covers-impor tant changes by legislative action. The study was made by Sara L. Buchanan, Attorney, aided by Mary L. Sullivan, Associate Economist, and Elizabeth Batson, Editorial Assistant, all of the Bureau staff. Respectfully submitted. Frieda S. Miller, Director. Hon. Maurice J. Tobin, Secretary of Labor. in CONTENTS A.—CIVIL RIGHTS I.—CONTRACTS AND PROPERTY 1. Age of Majority. 2. Contractual Powers of Minors. 3. Property Exemptions from Seizure for Debt—Respective Rights of Men and Women. * 4. Property of Married Woman Owned at Marriage—Owner ship After Marriage. 5. Contractual Powers of Married Women. 6. Separate Earnings of Married Woman—Ownership and Con trol. 7. Liability of Married Woman for Family Necessaries. 8. Formal Procedure Required for a Married Woman to Engage in a Separate Business. 9. Married Woman’s Separate Property—Control During Mar riage—Liability for Husband’s Debts. 10. Property Acquired After Marriage Through Cooperative Efforts of Spouses—Ownership and Control. 11. Damages Recovered for Injury by Strangers to a Married Woman’s Person, Property, or Character—Ownership and Control. 12. Action to Recover Damages for Willful or Negligent Injuries to the Person or Property of One Spouse by the Other— Respective Rights of Husband and Wife. 13. Competency of Spouses to Testify For or Against Each Other. 14. Disposition of Separate Property by Will—Extent of Mar ried Woman’s Right. 15. Estate of Deceased Husband or Wife—Share of Surviving Spouse. 16. Provision for the Surviving Spouse During Administration of the Estate. 17. Disinheritance of Husband or Wife by Will of Deceased Spouse—Survivor’s Alternative. II.—MARRIAGE AND DIVORCE 18. Age of Consent to Marriage—Men and Women. 19. Validity of Common-Law Marriage. 20. Health Certificate Requisites Prior to Issuance of Marriage License—Men and Women. 21. Interstate Cooperation In Marriage Law Enforcement. 22. Grounds for Marriage Annulment—Respective Availability to Man or Woman. 23. Grounds for Divorce—Respective Availability to Spouses. v VI CONTENTS III.—PARENTS AND CHILDREN 24. Services and Earnings of Minor Children—Parents’ Respec tive Rights. 25. Guardianship of Minor Children—Parents’ Respective Rights. 26. Appointment of Testamentary Guardian for Minor Children —Parents’ Respective Rights. 27. Inheritance from an Intestate Child—Parents’ Respective Rights. 28. Support of Children Born Out of Wedlock—Parents’ Respec tive Responsibility. 29. Inheritance from Child Born Out of Wedlock—Mother’s Right. B.—POLITICAL RIGHTS 30. Domicile of Married Women. 31. Public Office—Eligibility of Women. 32. Jury Service—-Eligibility of Women. THE LEGAL STATUS OF WOMEN IN THE UNITED STATES OF AMERICA INTRODUCTION Any conclusion bearing on woman’s status under the laws of the United States of America must take into account the common law, on which the fabric of the Nation’s jurisprudence is woven. The common-law rules of property sprang from various causes, notably tradition, military or economic exigency, natural male dominance, and the social status of women. Shifts in these have effected an almost complete overturn in laws governing the prop erty owned by a woman prior to her marriage and that coming into her individual ownership after her marriage, by gift, in heritance, will, or accumulation from her premarital possessions. In general, it has been the rule that where specific statutes abro gating common-law principles have not been enacted, the common law applies. In the century just past, many of the old commonlaw injustices to women have been removed by statute. The largest remaining area to be reformed to the present-day trend lies in the matter of ownership and control of property acquired by the cooperative efforts of husband and wife after marriage. The material considered centers largely around the woman in the marriage relation, since the legal status of the unmarried woman is practically identical with that of the unmarried man, with the exception of the discrimination in some States which bars women from jury duty; or of distinctions, such as variance between men and women in the statutory age of majority or age of consent to marriage. 1 DELAWARE SOURCES Constitution of Delaware. Revised Code of Delaware, 1935. Session Laws, 1937, 1941, 1945, 1947. Delaware Reports. Delaware Chancery Reports (Del. Ch.). Atlantic Reporter. EXPLANATORY NOTE References to the State Constitution are indicated by parenthet ical insertions of section numbers following the abbreviation Const., as (Const., art. 15, sec. 10), placed after the related sub ject matter. Code section references are likewise in parentheses, thus (sec. 3704). Session laws are referred to by year of enactment and page number, as (1945, p. 916). Case citations, definitely construing statutes or declaring ju dicial policy in the absence of express statutory provision, are indicated by numerical footnote references, and appear immedi ately after the related paragraphs. Cases showing historical development of a statute or policy are followed by the abbrevia tion (Hist.). Subject headings are preceded by numbers, which remain con stant for their respective topics through the entire State series. Cross references among topics employ these numbers for brevity, as “See Number 6,” which refers to the subject heading “Separate Earnings of Married Woman—Ownership and Control.” 2 DELAWARE A.—CIVIL RIGHTS I.—CONTRACTS AND PROPERTY 1. Age of Majority. The age of majority is 21 years for both sexes, by rule of the common law. 2. Contractual Powers of Minors. The general rule in the State seems to be that the contracts of minors, not for necessaries, are merely voidable at their elec tion, and not absolutely void. As to his voidable contracts, a minor may affirm or disaffirm them when he comes of age, “as his own views of his interest may lead him to elect.” 1 The deed of an infant is voidable by him on his arriving at full age, and when so voided is of no effect. But this privilege of dis affirmance must be exercised within a reasonable time after the infant reaches full age.2 No person under the age of 21 years is deemed capable of making a will either of real or of personal estate (sec. 3704). A married woman who is under 21 years of age may execute a valid bond, obligation, or mortgage (1945, p. 916). 1 King v. Cordrey (1935), 6 W. W. Harr. (36 Del.) 418; 177 Atl. 303. 2 Wallace v. Lewis (1843), 4 Harr. 75. 3. Property Exemptions from Seizure for Debt—Respective Rights of Men and Women. There are no exemptions of homestead in this State, but real property and all right of dower and curtesy are subject to execu tion when the personal estate is insufficient to satisfy the judg ment (sec. 4792). . Every person residing in the State may hold exempt from execution or attachment or distress for rent, certain enumerated personal property not exceeding in value $75 in New Castle and Sussex Counties, and $50 in Kent County (sec. 4793). Every person who is a resident, and the head of a family, is entitled to hold exempt other personal property than that allowed under section 4793, up to a value of $200 in New Castle County and $150 in Kent County, the articles to be selected by the debtor. The County of Sussex is excepted from these provisions (sec. 4794). ' The exemptions to “the head of the family” may be claimed 3 4 THE LEGAL STATUS OF WOMEN by the husband and wife jointly, or by either with the written consent of the other, or half of such exemptions may be claimed by each spouse. But all the exemptions to the head of a family cannot be claimed by each of the spouses concurrently (sec. 4795). 4. Property of Married Woman Owned at Marriage—Ownership After Marriage. The wife owns as her separate estate whatever property she has acquired in any manner (sec. 3541). 5. Contractual Powers of Married Women. As to her separate property (see Number 9 for definition) a married woman may sell, convey, assign, transfer, will, encumber, or otherwise make disposition of it; and she may contract jointly, with her husband or others, or separately, sue and be sued, and exercise all other rights and powers, including the power to make a will [see Numbers 2 and 14], as if she were unmarried; pro vided, none of her acts or conveyances are to affect the husband’s right of curtesy in her real estate (sec. 3541). The obvious purpose of this statute is to make the property of a married woman her sole and separate property, to give her the right to contract generally, and to sue and be sued, the same as though she were unmarried.1 It permits a married woman to become surety for her hus band’s debt, even though she may not be able to sue him after ward to reimburse her for her payment of the debt, as any other surety may do who is a stranger.1 The legislature intended to give a married woman the right to make contracts, regardless of whether they had any reference to her own property.2 A married woman executes and acknowledges her deeds of con veyance as if she were unmarried (1945, p. 913). If a wife is abandoned by her husband without just cause, and owns real estate in her own right, she is empowered by statute to sell or dispose of it as if unmarried (sec. 3544). If either spouse is insane, the other may dispose of his or her own real estate by proper proceeding before the court designated by law, when the court deems it wise to authorize such disposition (secs. 3663, 3664). Upon the purchase of real estate by a married woman, she may give security for the purchase money as if she were unmar ried, and her husband need not be a party nor give his consent to her action, nor is he liable under the contract unless he is a party to it (sec. 3545). A married woman may act as executrix or administratrix, as though she were single. The fact of her marriage does not give any right to her husband to participate in the management of the estate, nor is he liable for any action of hers in such capacity unless he is a party to her bond and becomes liable as such (sec. 3546). However, another statute provides that if a married woman is appointed as executor or administra tor, she and her husband must join and be principals in the bond, DELAWARE 5 and she is bound notwithstanding her marriage (secs. 3804, 3813). A man and woman in contemplation of matrimony by a mar riage contract executed in the presence of two witnesses at least 10 days before the solemnization of the marriage may determine what rights each shall have in the other’s estate during marriage and after its dissolution by death, and may bar each other of all rights in their respective estates not so secured to them. Such contracts may be acknowledged and recorded in county deed rec ords (sec. 3543). A married woman may insure her husband’s life, and all pro ceeds of the policy are free generally from claims of the husband’s representatives or creditors (sec. 508). The common-law unity for husband and wife, while modified, has not been abolished in the State, and the wife is still under those common-law disabilities that have not been removed by statute.3 1 Industrial Trust Co. V. Cantera (1933), B W. W. Harr. (36 Del.) 364, 369- 165 Atl. 338. 2 Heitz V. Sayers (1923), 2 W. W. Harr. (32 Del.) 207, 215; 121 Atl. 225. 3 Eliason V. Draper (1910), 2 Boyce (25 Del.) 1, 4; 77 Atl. 572. (Hist.) 6. Separate Earnings of Married Woman—Ownership and Con trol. The statute provides that whatever property a wife acquires in any manner is her sole and separate property, and she may sue concerning it as if she were unmarried (sec. 3541). See Number 9. 7. Liability of Married Woman for Family Necessaries. All debts contracted before marriage by the wife, or by her authority after marriage, are a charge on her real and personal property, and judgment may be recovered against her in her name (sec. 3547). 8. Formal Procedure Required for a Married Woman to Engage in a Separate Business. No judicial proceeding is required by statute to permit a mar ried woman to engage in a separate business on her own account. And the court’s interpretation of the married woman’s statute is that under it she has the general right of contract as if unmar ried.1 1 Industrial Trust Co. Atl. 338. V. Cantera (1933), 6 W. W. Harr. (36 Del.) 364, 369- 165 9. Married Woman’s Separate Property—Control During Mar riage—Liability for Husband’s Debts. “The property of a married woman, whether real, personal or mixed, and choses in action which she may have acquired in any manner, and all the income, rents, and profits thereof,” is con sidered her sole and separate property. The husband’s only right reserved by the statute is that of tenancy by curtesy, which at taches if he survives the wife (sec. 3541). The effect of this provision is to bar the husband’s right of G THE LEGAL STATUS OF WOMEN control or any interest in her property during her lifetime.1 The common-law estate by the entirety has not been abolished by the Married Woman’s Act, and a conveyance of real estate to a husband and wife creates such an estate.2 The interest of the wife in such an estate is her separate prop erty, and not subject to her husband’s debts or control; neither the entirety estate nor the interest of either spouse can be sold during their joint lives, except with the consent of both husband and wife; and no judgment against either spouse is a lien on the entirety property or any interest of either spouse in it during their joint lives.1 Estates by the entirety may be created in personal property.4 1 Moore v. Darby (1889), 6 Del. Ch. 193, 204; 18 Atl. 768; 18 L, E. A. 846. - Heit.z v. Sayers (1923), 2 W. W. Harr. (32 Del.) 207, 214. 3 Carlisle V. Parker (1936), 188 Atl. 67, 70. 4 Rauhut v. Reinhart (1936), 180 Atl. 918. 10. Property Acquired After Marriage Through Cooperative Efforts of Spouses—Ownership and Control. Whatever property is acquired after marriage by the coopera tive efforts of the spouses belongs to the husband, and is subject to his control and disposition of it, under the prevailing commonlaw rule, unless joint ownership is established by private ar rangement, such as joint deeds, or joint bank accounts. 11. Damages Recovered for Injury by Strangers to a Married Woman’s Person, Property, or Character—Ownership and Control. Either spouse has a remedy in law against a party who wrong fully causes the loss of the “consortium” of the other spouse through alienation of his or her affections. “Consortium” em braces comfort, fellowship, society, aid, and assistance to which each spouse is entitled from the other.12 The right of consortium is, in the broadest sense, a property right, arising by virtue of the marital relation, but is purely personal, either in the husband or in the wife.3 1 Ramsey V. Ramsey (1931), 4 W. W. Harr. (34 Del.) 576, 578; 156 Atl. 354. (Hist.) 2 Lupton V. Underwood (1912), 3 Boyce (26 Del.) 519, 539 ; 86 Atl. 965. ’ Hollett V. Wilmington Trust Co. (1934), 6 W. W. Harr. (36 Del.) 170, 179; 172 AU. 763. (Hist.) 12. Action to Recover Damages for Willful or Negligent Injuries to the Person or Property of One Spouse by the Other— Respective Rights of Husband and Wife. It is held that the terms of the Married Woman’s Act, empower ing a wife to sue and be sued as if unmarried, do not expressly confer upon spouses the right to sue each other in a court of law.1 However, to protect her property rights, a wife may sue her husband in a court of equity.2 1 Plotkin V. Plotkin (1924), 2 W. W. Harr. (32 Del.) 456, 462; 125 Atl. 455, 457. (Hist.) 2 Peters V. Peters (1933), 20 Del. Ch. 28; 169 Atl. 298. (Hist.) DELAWARE 7 13. Competency of Spouses to Testify For or Against Each Other. It is lawful for a wife or a husband to testify for or against the other in both civil and criminal causes in any of the courts of the State (sec. 4691). 14. Disposition of Separate Property by Will—Extent of Mar ried Woman’s Right. Any person who is at least 18 years of age, and mentally capa ble, may make a will disposing of real and personal estate (1945, p. 920). A married woman may not by her will defeat her hus band’s right of curtesy in her real estate, if he survives her (sec. 3541). See Numbers 5 and 15 as to wife’s rights under her hus band’s will, and effect of antenuptial contract. 15. Estate of Deceased Husband or Wife—Share of Surviving Spouse. Absolute Interest. If a person dies intestate, leaving a husband or widow, but no kin and no heir, the surviving spouse takes all the real property of the decedent absolutely (sec. 3731). The residue of the personal estate not disposed of by will of a deceased married person, after payment of all proper debts, passes absolutely to a surviving husband or wife, if no issue survive, but if issue survive the living spouse takes one-third part absolutely (sec. 3847). Life Interest. Intestate estates.—The descent of intestate real estate is sub ject in all cases to the statutory rights of a surviving husband or widow; that is, if the person dying intestate leaves a surviving spouse and issue, the surviving spouse has one-half the real estate for life; or if no issue survive, the living spouse has all the real estate for life. The interest of the widow is a tenancy in dower; that of the husband, a tenancy in curtesy (sec. 3731). Testate estates.—The widow’s common-law dower is preserved in the statute, whereby she is entitled for her lifetime to a third part of all the real estate owned by her husband at any time during their marriage, free from debts incurred by the husband after the marriage, unless she is barred of such right of dower by her own act as prescribed by law (sec. 3767). This dower interest attaches upon the marriage and becomes a vested right upon the husband’s death, if no act is done to bar it and no provision is made by the will in lieu of her dower.1 See Number 17 as to right of election against will. The right may be barred by action of the wife in (1) accept ing before marriage (if at that time she be of the age of 21 years) an estate in or a charge upon real estate of her intended husband as a provision for her support in lieu of dower, or (2) forfeiting it by willingly leaving her husband, without his fault, and going with an adulterer, or living in adultery in a state of separation 8 THE LEGAL STATUS OF WOMEN from her husband, without reconciliation with him (secs. 8769, 3775). When a person before 'marriage makes a will, and the will contains no provision for a surviving husband or wife, such sur viving spouse shares in the estate as if the decedent had died intestate (sec. 3727). 1 In re Green’s Estate (1928), 16 Del. Ch. 470; 142 Atl. 826. 16. Provision for the Surviving Spouse During Administration of the Estate. In the settlement of the personal estate of a person dying in testate, the statute exempts from inclusion in the inventory of assets the following items: The family Bible, the clothes of the widow and ornaments proper to her station, the clothes of the family and of the deceased, and the family stores laid in before the death of the deceased, or such part of them as the appraisers think proper to be used for the support of the family, “provided the same do not exceed in value thirty dollars” (sec. 3828). A widow is entitled, as a prior claim, to a cash allowance up to $500 from her husband’s estate, without regard to any other rights she may have under her husband’s will or under the State inheritance laws (sec. 3876) but claim must be filed within 6 months after husband’s death (1941, p. 950). Where entire value of an estate above exemptions allowed by law is not more than $500, and no appointment of a personal representative of the deceased owner has been made or requested within the 30 days following the date of death, if debts have been paid or provided for, the estate may be distributed directly to the decedent’s wife, husband, children, father, mother, brother, or sister. Preference will be given in the order named (1947, H. B. 216). The wife of a deceased person employed in the State has the prior right to receive from the employer, at any time after 15 days following her husband’s death, all wages due her husband, where such wages are not over $75 in amount, without an ad ministration upon her husband’s estate. If no wife survives, the same right is given to one of the following classes of relatives, in the order named: Children, father, or mother, sister or brother (sec. 3845). A bank deposit of not more than $75 to the individual credit of any deceased person may be paid at any time after 15 days following the person’s death to the wife, husband, children, father, mother, sister or brother (preference being given in the order named) of such deceased person, without administration of the estate (sec. 3846). 17. Disinheritance of Husband or Wife by Will of Deceased Spouse—Survivor’s Alternative. If a husband by his will gives his wife any portion of his real estate, such portion is held to be in lieu and bar of the wife’s dower in the husband’s estate, unless the will declares otherwise, DELAWARE 9 but the wife may exercise her right to take instead of the pro vision in the will her dower interest provided in such cases. This election must be made either voluntarily, or within 30 days after a formal notice from any person interested in the estate has been served on her to make an election; otherwise, the will governs (secs. 3771-3774). The wife may not defeat the husband’s right as a tenant by the curtesy in her real estate (sec. 3541). II.—MARRIAGE AND DIVORCE 18. Age of Consent to Marriage—Men and Women. Marriage is prohibited to males under the age of 18 years and to females under the age of 16 years. Consent in writing, duly witnessed as required by law, must be supplied from the parents or a parent, or the legal guardians or guardian or curator, or other person permittd by law, if there be no parent or guardian, in any case where the male applicant for license to marry is under 21 years of age, or the female applicant is under 18 years of age. The consent requirements may be suspended “in cases where the parties desiring to intermarry shall acknowledge under oath before the officer to whom the application for license to marry shall be made that they are the parents or the prospective parents of a child, but every application of such persons for a license to marry shall have endorsed thereon the reason for issuing said license” (sec. 3491). 19. Validity of Common-Law Marriage. A common-law or a nonceremonial marriage entered into in the State is not a valid marriage.1 1 Wilmington Trust Co. v. Hendrixson (1921), 1 W. W. Harr. (31 Del.) 303, 325* 114 Atl. 215. (Hist.) 20. Health Certificate Requisites Prior to Issuance of Marriage License—Men and Women. The statute provides that it is unlawful for any person within the following classes to marry: Epileptic; unsound of mind in any degree; venereally diseased, or afflicted with any other communica ble disease the nature of which is unknown to the other party to the proposed marriage; habitual drunkard or confirmed user of a narcotic drug; divorced (unless the facts concerning the divorce be supplied as required by law) ; a patient in an insane asylum without proper showing of fitness to marry; on proba tion or parole under any court or institution, without official consent to marry; within a prohibited degree of relationship (sec. 3485). Each applicant is required to certify that he or she is not disqualified for marriage on any of these grounds (sec. 3490). Each applicant for license to marry must file a physician’s certificate showing a standard serological test within 30 days of issuance of license and that syphilis either is not present, or if present, is not in a communicable stage. Also, the statement of 10 THE LEGAL STATUS OP WOMEN the approved laboratory making the test must be filed. Excep tions to these requirements are granted at the discretion of the superior court j udge. If infection is present in one or both parties, the State Department of Health must follow up the case as re quired by the statute (1947, H. B. 42). If one or both applicants are residents of this State, the license to marry must be obtained at least 24 hours before the ceremony is to be performed. If both parties are nonresidents, the license must be obtained at least 96 hours before the time the ceremony is to be performed (sec. 3487). 21. Interstate Cooperation in Marriage Law Enforcement. If a marriage forbidden by the laws of the State (see Numbers 20 and 22) is contracted or solemnized outside the State when the legal residence of either party is in this State, and the parties afterward live and cohabit as husband and wife within this State, they are guilty of a misdemeanor and subject to punishment as though the marriage had been contracted in this State (sec. 3485). 22. Grounds for Marriage Annulment—Respective Availability to Man or Woman. Every marriage within the forbidden degrees of kindred, and between any white person and a Negro or mulatto, is void; and every other marriage forbidden by statute [see Number 20] is voidable at the instance of the innocent party. The guilty party to the marriage will be held to have committed a misdemeanor, and so subject to a fine of $100. A marriage may be annulled for any of the following causes existing at the time of the marriage: (1) Incurable physical impotency or incapacity for copulation, at the suit of either party, provided the party making the application was ignorant of such impotency or incapacity at the time of the marriage; (2) con sanguinity or affinity according to the table of degrees established by law, at the suit of either party; (3) when the marriage was contracted while either of the parties had a husband or wife liv ing, at the suit of either party; (4) fraud, force, or coercion, at the suit of the innocent and injured party, unless the marriage has been confirmed by the acts of the injured party; (5) insanity of either party, at the suit of the other, or at the suit of the committee of the lunatic, or of the lunatic on regaining reason, unless such lunatic, after regaining reason, has confirmed the marriage (sec. 3497). 23. Grounds for Divorce—Respective Availability to Spouses. An absolute divorce or a divorce from bed and board may be granted on one of the following grounds: Adultery, bigamy (at the suit of the innocent and injured party to the first marriage), conviction and sentence for crime followed by imprisonment for at least 2 years, extreme cruelty such as to endanger the life or DELAWARE 11 health of the other party or to render cohabitation unsafe, willful desertion for 2 years, habitual drunkenness for 2 years (sec. 3499) ; when either husband or wife has been adjudged feeble minded, epileptic, or a chronic or recurrent insane person, and under supervision or care of an institution for mental diseases, during a period of 5 years; but a divorce will be granted only after all legal requirements have been met as to proof in the case and the Judges of the Superior Court deem it wise to grant such relief (1937, p. 611). These grounds are available without distinction as to sex. An absolute divorce may be granted at the suit of the wife (1) when she was under the age of 16 years at the time of her mar riage unless the marriage was confirmed by her after arriving at such age, or (2) for the husband’s congenital or guiltily acquired inability and failure to support his family, as to which the wife neither had nor could have had any previous knowledge or warn ing at the time of the marriage (secs. 3499, 3500). Absolute divorce may be granted to the husband when he was under the age of 18 at the time of the marriage, unless he con firmed the marriage after arriving at that age (sec. 3499). A limited divorce, that is, a divorce from bed and board, may be granted the wife for hopeless insanity of the husband (sec. 3500) . This statute is of special interest: “Whoever, being the hus band of any woman, shall assault and strike or beat his wife, shall be guilty of a misdemeanor, and upon conviction thereof, may in the discretion of the court be sentenced to be whipped with not less than five nor more than thirty lashes, and fined or imprisoned” (sec. 5172). III.—PARENTS AND CHILDREN 24. Services and Earnings of Minor Children—Parents’ Respec tive Rights. The father and mother are equally entitled to the services and earnings of their minor child. If one be dead, or has abandoned the child, or has been deprived of its custody by court decree, the other parent is entitled to the whole of such services and earnings (sec. 3577). The parents jointly may sue for loss of wages or services of the child, when the loss is caused by wrongful or negligent injury (sec. 3578). 25. Guardianship of Minor Children—Parents’ Respective Rights. The father and mother are the joint natural guardians of their minor child and are charged equally with its care, nurture, wel fare, and education. They have equal powers and duties with respect to the child, and neither parent has any right superior to the right of the other parent as to custody or any other matter affecting the minor. If either parent dies, abandons the child, or becomes incapable to act as guardian, then the guardianship rests upon the other parent (sec. 3576). 12 THE LEGAL STATUS OF WOMEN 26. Appointment of Testamentary Guardian for Minor Children— Parents’ Respective Rights. The sole surviving parent of any minor child may, by deed or last will, name a guardian of the person or property, or both, of his or her child, who shall be appointed if no just cause to the contrary be shown (sec. 4424). 27. Inheritance from an Intestate Child—Parents’ Respective Right. If an intestate deceased person leaves no spouse nor lawful issue, the real property descends absolutely to the father and mother as tenants by the entirety, or to the survivor of either in fee simple. If the parents are divorced, they take the land as tenants in common (sec. 3731). If no spouse nor lawful issue survive, the residue of the per sonal estate of an intestate deceased person, after payment of debts and charges of administration, is to be distributed in equal shares to the father and mother, or if only one parent is living all the residue goes to that parent (sec. 3847). 28. Support of Children Born Out of Wedlock—Parents’ Respec tive Responsibility. Under the desertion and support statute, it is provided that any parent who shall, without lawful excuse, desert or willfully neglect or refuse to provide for the support and maintenance of his or her legitimate or illegitimate child or children, under the age of 16 years, in destitute or necessitous circumstances, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine, not exceeding $500, or by imprisonment with hard labor in such penal or reformatory institution of this State as may be determined upon by the court, for a period not exceeding 1 year, or both. It is made the duty of the parent of any illegitimate child or children, under the age of 16 years to provide for the support and maintenance of such illegitimate child or children (sec. 3527). Under the provisions for illegitimate children, the father is bound to pay the State Old Age Welfare Commission all charges it may incur for maintenance, or otherwise, of an illegitimate child until it is 16 years of age, when such child is an inmate of the State Welfare Home (sec. 3558). The responsibility of the father in such cases is determined by a judicial proceeding instituted upon complaint of the child’s mother, or any other person, as provided by statute. If the person accused is adjudged to be the child’s father, the court will issue an order, subject to later changes if circumstances require it, charging the father to make periodic payments to the mother or other person keeping the child, of not less than $15 nor more than $40 a month for the maintenance of the child until it is 16 years of age. In addition, the court’s order will require payment of the birth expenses in a sum not less than $25 nor more than DELAWARE 13 $40, and physician’s fee of not less than $20 nor more than $30. All orders are in the discretion of the court, having regard to the circumstances and to the financial ability or earning power of the defendant. Bond to secure payment is required. Costs of the proceeding are paid by the father, if paternity is established; otherwise by the county (secs. 3559, 3563, 3572). 29. Inheritance from Child Born Out of Wedlock—Mother’s Right. When an illegitimate person dies intestate and without lawful issue, his property real and personal passes and belongs to the mother, after payment of debts and administration charges (sec. 3573). B.—POLITICAL RIGHTS 30. Domicile of Married Women. No statutory provision is made for the separate domicile of married women; consequently the common-law rule governs, that the domicile of the wife follows that of her husband. 31. Public Office—Eligibility of Women. No citizen of the State may be disqualified by reason of sex to hold and enjoy any office or public trust under the laws of the State (Const., art. 15, sec. 10). 32. Jury Service—Eligibility of Women. All persons qualified to vote at the general election are liable for jury service, other than the enumerated classes of professions or occupations for which exemption is allowed (sec. 4721). Women serve on juries under the same terms as men (1945, p. 968). [Repealed the former optional privilege of women.] * U S. GOVERNMENT PRINTING OFFICE: 1949-854672
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