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STATE
COLLEGE LTBRa
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
NEW JERSEY
Individual State material, constituting fart of a
compilation to show the present legal status of
women in the United States of America
Bulletin of the Women’s Bureau, No. 157-29 (Revised)
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1948
For sale by the Superintendent of Documents, U. S. Government Printing Office, Washington 25. P* G.
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 Constitutions,
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, October 5,
Sirs : I have the honor to transmit to you a revised report on the legal
status of women in New Jersey. This is one of 54 separate reports
constituting a survey of the laws of the 48 States, the District of Colum
bia, 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 important
changes by legislative action.
The study was made by Sara Louise Buchanan, Attorney on the
Women’s Bureau staff, member of the bars of the Supreme Court of the
United States and of the Mississippi Supreme Court. Valuable as
sistance was given in the preparation of the report by Mary Loretta
Sullivan, Associate Economist, and Elizabeth Batson, Editorial
Assistant, both of the Bureau staff.
Respectfully submitted.
Frieda S. Miller, Director.
Hon. Maurice J. Tobin,
Secretary of Labor.
in
4
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—Ownership
After Marriage.
5. Contractual Powers of Married Women.
6. Separate Earnings of Married Woman—Ownership and Control.
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 P’roperty 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 Married
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’ Respective
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’ Respective
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 domi
nance, and tlie social status of women. Shifts in these have enected
an almost complete overturn in laws governing the property owned by
a woman prior to her marriage and that coming into her individual
ownership after her marriage, by gift, inheritance, will, or accumula
tion from her premarital possessions.
In general, it has been the rule that where specific statutes abrogating
common-law principles have not been enacted, the common law applies.
In the century just past, many of the old common-law 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 m the
marriage relation, since the legal status of the unmarried woman is
practically identical with that of the unmarried man, with the excep
tion of the discrimination in some States which bars women from jury
duty; or of distinctions, such as variance between men and women m
the statutory age of majority or age of consent to marriage.
1
NEW JERSEY
SOURCES
Constitution of New Jersey.
85*"*
,nd Cumu“™ s-"*-*•
New Jersey Miscellaneous Reports.
New Jersey Equity Reports.
New Jersey Law Reports.
Atlantic Reporter.
EXPLANATORY NOTE
References to the State Constitution are indicated by parenthetical
insertions of article and section numbers following the abbreviation
matter &S ^0nst” art‘
sec- *)> placed after the related subject
References to the Revised Statutes and Cumulative Supplements are
likewise m parentheses, thus (sec. 37: 2-16).
as a9411 pl 508f ^ referred to by year of enactment and page number,
Case citations, definitely construing statutes or declaring judicial
policy m the absence of express statutory provision, are indicated by
numerical footnote references, and appear immediately after the re
lated paragraphs. Cases showing historical development of a statute
or policy are followed by the abbreviation (Hist )
Subject headings are preceded by numbers, which remain constant
for their respective topics though the entire State series. Cross ref
erences among topics employ these numbers for brevity, as “See Num
ber 6, which refers to the subject heading “Separate Earnings of
Married Woman—Ownership and Control.”
NEW JERSEY
A.—CIVIL RIGHTS
I.—CONTRACTS AND PROPERTY
1. Age of Majority.
The age of majority is 21 years for men and women, by rule of com
mon law, which governs in the absence of an express statute (Const.,
art. 10, sec. 1).
2. Contractual Powers of Minors.
Generally, the contracts of an infant are not absolutely void,1 but
voidable only.2
Likewise, an infant’s deed is voidable, and his right to disaffirm it
continues for 20 years after he attains his majority, unless he has rati
fied the transaction. The court observes that:
“* * * No formal act is necessary to constitute ratification. Any
conduct on the part of the former infant which evidences his decision
that the transaction shall not be impeached, is sufficient for this
purpose.”3
Under the provisions of the Uniform Sale of Goods law, where neces
saries are sold and delivered to an infant he must pay a reasonable
price for them. “Necessaries” means goods suitable to the condition
in life of the infant and to his actual requirements at the time of de
livery (sec. 46: 30-8).
A man at 18 and a woman at 16 years of age may appear and prose
cute or defend a suit for divorce or nullity of marriage in his or her
proper person or by his or her solicitor (sec. 2:50-14).
A minor of the age of 15 years is competent to contract for insurance
on his life for the benefit of himself or designated relatives; also, to
make contracts for surrender of the insurance, discharge of benefits, or
money payable under the policy (sec. 17: 3T-30).
See Number 14 as to wills.
■L« Rosa v. Nichols (1918), 92 N. J. Law 375, 379 ; 105 Atl. 201.
a Mott v. Iossa (1935), 119 N. J. El], 185, 191 ; 181 Atl. 689.
a Mott v. Iossa (1935), 119 N. J. Eq. 185, 192 ; 181 Atl. 689.
3. Property Exemptions from Seizure for Debt—Respective
Rights of Men and Women.
Personal Property.
Goods and chattels, shares of stock or interests in any corporation
and personal property of every kind, not exceeding $200 in value, and
all wearing apparel, owned by a debtor having a family residing in
this State, is reserved, both before and after his death, for the use of
his family, exempt from seizure under legal process, except for pur
chase-money or taxes (sec. 2: 26-99). See also Number 16.
808950—48-
-2
3
4
THE LEGAL STATUS OF WOMEN
Household goods and furniture, not exceeding $200 in value, of a
debtor who has a family residing in the State are exempt from attach
ment, except for a debt incurred for the purchase-money of such prop
erty (sec. 2: 42-6).
Exemption from Distress.
“Beasts of the plow, sheep, or implements of a person’s trade, shall
not be distrained for any cause whatsoever, while other distress or
chattels may be found sufficient for the levy, except the distraining and
impounding of beasts found on the ground of any person damage
feasant” (sec. 2: 49-3).
Wages and Earnings.
Not more than 10 percent of a judgment debtor’s weekly income to
the amount of $18 or more, derived from wages, debts, earnings, salary,
income from trust funds, or profits due and owing to him, may be
subjected to execution by a judgment creditor. If, however, the
debtor’s income from such sources exceeds $1,000 per year, the court
may order a larger percentage subject to execution. Only one execu
tion may be levied at one time against such income (secs. 2: 26-182 to
2:26-184). Execution may not issue if the earnings are under $18
per week.1
Insurance.
The lawful beneficiary under a life insurance policy, other than the
insured himself, is entitled to the proceeds against the creditors and
representatives of the person effecting the policy, except that where
due notice is given to the company, a creditor is entitled to recover
the amount of any premiums paid in fraud of his rights (sec. 17: 34
28). Every policy of life insurance payable to or for the benefit of a
married woman is to be held for her use and benefit, and that of her
children, subject to the statutory provisions preserving creditors’
rights (sec. 17: 34-29).
Homestead.
The law exempts from sale or execution, for debts contracted, the lot
and buildings on it occupied as a residence and owned by the debtor,
being a householder and having a family, to the value of $1,000 (sec.
2: 26-110). This exemption continues after the death of the house
holder for the benefit of his widow and family, as long as some or one
of them continue to occupy the homestead, until the youngest child
reaches the age of 21 years and until the death of the widow (sec. 2:
26-111). No release or waiver of the homestead exemption is valid
(sec. 2: 26-112). To entitle any property to this exemption, either
the conveyance must designate it as a homestead or a formal declara
tion, as prescribed by law, must be made and recorded by the person
owning the property, and notice published weekly for not less than 6
weeks (sec. 2: 26-113). When so declared, the homestead is reserved
for use of the debtor’s family, and is not to be leased or sold, aliened,
or encumbered unless: (1) The full consent of the owner’s wife or hus
band, if any, is duly acknowledged by deed; (2) the consideration paid
is the full fair value, and such consideration, or $1,000 of it, is actually
invested in other lands and buildings declared to be a homestead. The
title of a purchaser to the original homestead is not good until the pur
chase money is so invested, unless the homestead owner has removed
out of the State (secs. 2: 26-120, 2: 26-121).
1 Oetjen v. Hintemann (1916), 91 N. J. Law 429 ; 106 Atl. 213.
NEW JERSEY
5
4. Property of Married Woman Owned at Marriage—Ownership
After Marriage.
The real and personal property which a woman owns at the time of
her marriage remains her separate property (sec. 37:2-12).
5. Contractual Powers of Married Women.
Any married woman has the right to contract in the same manner and
to the same extent as though she were unmarried. Such a contract is
legal and binding, enforceable in law or in equity by and against her
in her own name, apart from her husband. The sole contract of a
married woman concerning her rights in her real property or that of
her husband is valid without the husband’s joinder or consent, but
does not affect any right of the husband in such real estate (sec. 37:
2-16). See Number 15—Life Interests.
A married woman may contract, in her own name or that of a trustee,
for insurance on the life of her husband, for her sole use. If she sur
vives her husband, the proceeds of the policy payable to her are for her
own benefit, free from claims of the husband’s representatives or
creditors. If she dies first, the insurance may be made payable to her
children (sec. 17: 34-26). She may transfer or assign such a policy to
her husband or to any other person, with his assent (sec. 17: 3L-27).
The provisions of the Married Woman’s Act do not enable a husband
or wife to contract with or to sue each other generally, but only in
cases expressly provided by law (sec. 37:2-5).
Since a married woman cannot make a valid contract of employment,
either express or implied, with her husband, she cannot recover under
the State Workmen’s Compensation Act for an injury sustained by her
while rendering services to her husband in his business.1
[Though contracts between husband and wife are void at law they
are good m equity if fair and fairly obtained. See Ward v. McLellan
(1934), 116 N. J. Eq. 308,173 Atl. 589, and citations.]
•
A married woman may make any instrument relating to or affecting
her estate, interest, or right in her real property or in that of her
husband, with the same effect as if she were unmarried, and any such
instrument is valid without the joinder or consent of her husband.
But no conveyance, deed, contract, or act of such married woman
affects any estate, interest, or right of her husband in the property
(sec. 37: 2-17). See Number 15—Life Interests.
A conveyance of real estate, or any interest in it, may be made by
one spouse directly to the other (sec. 37: 2-18). Either husband or
wife may create a tenancy by the entirety by conveyance to self and
the other spouse. Also, either spouse may convey to the other his or
her interest in an estate by the entirety (1947, p. 1276).
When the spouses are living in a state of separation under a final
court decree, the one upon whose application the separation was
granted may dispose of his or her real property as if sole and unmar
ried, except any received by gift from the other spouse (secs. 37: 2
23, 37:2-24).
A statutory provision enables a married woman by court proceeding
to mortgage or convey proper title to her lands within the State, when
her husband is mentally incompetent (secs. 37: 2-25 to 37: 2-29).
A married woman may sue or be sued without her husband joining,
unless he would be a necessary party if he were not her husband (sec.
6
THE LEGAL STATUS OF WOMEN
37: 2-6). If a female party to an action marries after suit is brought
her rights in court are not affected (sec. 37:2-7).
Liability for Debts or Torts.
A married woman is liable as a feme sole, together with any property
she owns, for debts contracted before her marriage or in her own name
after marriage (sec. 37: 2-10).
Any judgment or decree obtained against a married woman under
the Married Woman’s Act is valid and effectual as if against an un
married person, but such judgment or decree does not affect any in
terest of her husband in her real property (sec. 37: 2-11).
For all torts committed by a married woman, damages may be re
covered from her alone. Her husband is not responsible for them
by reason of the marriage relation (sec. 37:2-8).
A married woman may be an executrix, administratrix, guardian, or
trustee, as if she were a feme sole. If a woman marries after her ap
pointment in any one of these capacities, her official status is not
affected by the marriage (sec. 37: 2-1).
1 Maurello
v.
Maurello (1932), 10 N. J. Misc. 950 ; 161 Atl. 844.
6. Separate Earnings of Married Woman—Ownership and Con
trol.
“The wages and earnings of a married woman acquired or gained by
her in any employment, occupation or trade since July 4, 1852, or ac
quired or gained by her prior thereto in any employment, occupation
or trade carried on separately from her husband, and all investments of
such wages, earnings, money or property shall be her separate property
as if she were a feme sole. All work and labor performed by a married
woman, from and after April 3, 1928, for third persons shall, unless
there is an agreement on her part to the contrary, be deemed to be per
formed on her separate account” (sec. 37:2-13).
[Prior to April 3,1928, the right of action for the recovery of moneys
earned by a married woman in and about her husband’s household lay
with the husband. See Miller v. Marshall (1934), 113 N. J. Law 420,
424,174 Atl. 726, citing Kleinert v. Hutchison (1923), 98 N. J. Law 831
121 Atl. 742.]
’
7. Liability of Married Woman for Family Necessaries.
So long as the marriage relationship exists, there is a common-law re
sponsibility imposed upon the husband to support and maintain his
wife and family if he is able to do so.1 To impose such an obligation
upon the wife, there must be either an express contract to pay out of
her own estate, or circumstances clearly showing the assumption of
individual liability on her part exclusive of that of her husband.23
See Number 5—Liability for Debts or Torts.
1 Rich v. Rich (1934), 12 N. J. Misc. 310, 315 ; 171 Atl. 515.
2 Auten v. Johnston (1935), 115 N. J. Law 71, 75 ; 178 Atl. 187.
8 Wilson v. Herbert (1879), 41 N. J. Law 454, 461. (Hist.)
8. Formal Procedure Required for a Married Woman to Engage
in a Separate Business.
No formal procedure is required by statute to enable a married
woman to engage in a separate business.
.
NEW JERSEY
7
9. Married Woman’s Separate Property—Control During Mar
riage-Liability for Husband’s Debts.
“The real and personal property of a woman which she owns at the
time of her marriage, and the real and personal property, and the
rents, issues and profits thereof, of a married woman, which she re
ceives or obtains in any manner whatever after her marriage, shall be
her separate property as if she were a feme sole” (sec. 37: 2-12). See
Number 6 as to separate earnings.
“The paraphernalia of a married woman, being the suitable orna
ments and wearing apparel of a married woman, which have come to
her through her husband during coverture, shall be her separate prop
erty as if she were a, feme sole” (sec. 37: 2-14).
All property, things in action, or other rights or interests, declared
by law to be the separate property of a married woman, are not subject
to the disposal of her husband nor liable for his debts (sec. 37:2-15).
I Ii6 pioceeds from a partition or other court sale of a married
woman’s interest in real estate acquired by her through inheritance
gift, or will may be paid to her upon court order, as prescribed by
statute, free of any claim of the husband, when she has lived separate
and apart from him for 3 or more years next preceding her application
for payment (sec. 37:2-21).
A conveyance of land to husband and wife creates an estate by the
entirety, as at common law, with the right of survivorship in each
spouse unless the conveyance itself shows a contrary intention; but
the Mamed Woman’s Act has extinguished the common-law right of
the husband to exclusive use and enjoyment of the property during the
joint lives of the spouses. The wife is endowed with the capacity dur
ing the joint lives to hold in her possession, as a single female, one-half
i i ?state’ in common with her husband. Only that estate which
the husband takes in his own right is subject to execution for his debts.1
Each spouse is entitled to one-half the income, rents, and profits.2
bee also Number 5.
Tenancies by the entirety in personal property are not recognized.3
Unless other provision is made in the conveying instrument, a mort
gage on land or personalty made to a husband and wife creates a joint
tenancy and not a tenancy in common (1947, p. 866).
1Buttlar V Rosenilath (1887), 42 N. J. Eq. 651; 9 Atl. 695. (Hist ) Cited and
2 7„f0lIOT?'ed ln Damron v. Mast (1937). 121 N. J. Eq. 489, 495 ; 191 Atl 467
Zan-omco v. Zansonico (1938), 124 N. J. Eq. 477, 480- 2 Atl (2d) 597
3 Central Trust Co. v. Street (1923), 95 N. J. Eq. 278 ; 127 Atl 82. 1
10. Property Acquired After Marriage Through Cooperative
Efforts of Spouses—Ownership and Control.
Except as otherwise provided by express statute, the common-law
rule applies (Const., art. 10, sec. 1). Under this rule, property ac
quired by the joint labors of husband and wife during marriage usually
belongs to the husband, in the absence of specific statute or a valid
private agreement. However, the practice is quite general to create
joint ownership between husband and wife by private arrangement
such as joint deeds or joint bank accounts.
Any writing in the nature of a chattel mortgage on household goods
and furniture unless for purchase money, must be executed as pre
scribed by statute by both husband and wife, when such property is in
the use and possession of a family (sec. 46:28-6).
.......................
8
THE LEGAL STATUS OF WOMEN
11. Damages Recovered for Injury by Strangers to a Married
Woman’s Person, Property, or Character—Ownership and
Control.
Any married woman may sue in her own name, without the joinder
of her husband, for all torts committed against her, or her separate
property, as if she were unmarried (sec. 37: 2-9).
_
The Married Woman’s Act was intended to confer upon a married
woman the power to protect and enforce her rights. It declares that
she may maintain an action as a single woman might lawfully do, and
without joining her husband in the suit, for all torts committed against
her or her property.1
.
....
So far as the enforcement of her rights is concerned, against third
persons to redress wrong committed against her, she stands in the same
relation to her husband as to a stranger.2
1 Sims v. Sims (1910), 79 N. J. Law 577, 582 ; 76 Atl. 1063 (Hist.).
2 Peskoioitz v. Kramer, Inc. (1929), 105 N. J. Law 415, 418; 144 Atl. 604.
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.
A husband and wife are not enabled generally to sue each other by
the provisions of the Married Woman’s Act (sec. 37: 2—5) and there
is no express statute changing the common-law rule as to personal
injuries.
In dismissing a bill in equity by which a wife sought to recover
damages from her husband for personal injuries sustained by her
through the husband’s negligence in the operation of his automobile,
the court observed that neither at law nor in equity can an action be
maintained by a wife against her husband for personal injuries. The
court held that a change in this long-established rule must be accom
plished by legislative action, and would not he done by implication
from the provisions of the Married Woman’s Act.1
1 Von Laszewski v. Von Laszewski (1926), 99 N. J. Eq. 25 ; 133 Atl. 179.
13. Competency of Spouses to Testify For or Against Each Other.
No person may be excluded as a witness in any action, proceeding, or
matter of a civil or criminal nature, because of marital relationship,
except as otherwise provided by statute (sec. 2:97-1).
In any criminal action or proceeding, either spouse is competent to
testify against the other to prove the fact of marriage. Upon the trial
of any indictment, a married woman may be admitted to testify against
her husband when she is the complainant against him, if she offers
herself as a witness.
.
Except as specifically provided by statute, no husband or wife is
competent to give evidence against the other in any criminal action or
proceeding (sec. 2: 97-4).
Privilege by Reason of Marital Relationship.
Except to prove the fact of marriage, no husband or wife may be
compelled to give evidence: (1) For the other in any divorce proceed
ing on account of adultery; (2) against the other in any criminal
action or proceeding; (3) for or against the other in any action for
criminal conversation.
NEW JERSEY
9
No husband or wife may be compelled in any action, proceeding, or
matter to disclose any confidential communication made by one to the
other during marriage (sec. 2: 97-9).
14. Disposition of Separate Property by Will—Extent of Married
Woman’s Right.
A married woman above the age of 21 years may dispose of her prop
erty by will as if unmarried, except the interest in her real property
to which her husband would be entitled by law at her death (sec.
37:2-2).
A person within the age of 21 years is incompetent to make a valid
will (sec. 3:2-2).
15. Estate of Deceased Husband or Wife—Share of Surviving
Spouse.
Absolute Interests
Real Estate.
When a married person dies intestate as to any real estate owned in
fee simple, a surviving spouse takes absolutely all such real estate if
the decedent left no lawful issue (sec. 3:3-4, as amended 1941, p. 508).
_ As to real property not purchased by the decedent during the mar
riage, owned by him or her in fee simple and not disposed of by a
valid will of the decedent, a surviving spouse takes outright only when
the deceased spouse left no (1) lawful lineal descendants; (2) brothers
or sisters of the whole or half blood or lawful issue of any of them;
(3) parents or parent; or (4) other relatives of the whole or half blood
capable of inheritance under the statute (sec. 3:3-9).
“Purchase,” as here used, is the acquisition of land by other means
than descent.1
No statutory provisions for descent of real estate, may be construed
to bar or injure curtesy or dower rights or to affect in any way a mar
riage settlement (sec. 3: 3-15).
Personal Property.
Of the personal property not bequeathed by a decedent’s will, re
maining after payment of debts, funeral charges, and just expenses, a
surviving spouse receives one-third, when decedent leaves lineal de
scendants (secs. 3: 5-1, 3: 5-2); the whole, when no lineal descendant
survives (sec. 3: 5-3).
Life Interests
A surviving spouse, whether alien or not, of a person dying intestate
or otherwise, is endowed for life of one-half of all real estate in which
the deceased husband or wife held title at any time during the marriage
which could be inherited by his or her heirs and to which he or she
had not released the right of curtesy or dower by valid deed (secs.
3:37-1,3:37-2).
These rights of husband and wife are present, fixed, and vested valu
able interests in the lands of inheritance of which the deceased spouse
was seized at any time during the marriage, provided the property was
acquired after the effective dates of the present dower and curtesy
acts2 3 [December 31, 1928, and January 1, 1929, respectively (secs.
3:37-1. 3: 37-2, notes) ].
10
T'HE LEGAL STATUS OE WOMEN
In lands acquired by a spouse prior to the effective dates of the
present dower and curtesy acts, a widow has a dower interest in onethird only (Statutes 1847, title 4, ch. 4), and a surviving husband, by
rule of common law, has a life estate in the whole provided a child
capable of inheriting it from the mother is born alive during the mar
riage.
It is said that no conflict exists between the operation of the law as to
dower or curtesy and the operation of the law as to devise or intestate
succession, and that when a spouse entitled to dower or curtesy becomes
vested with absolute title by will or inheritance the former right is
merged in the latter.4
Bar of Dower or Curtesy.
A married person who voluntarily leaves his or her spouse and goes
away and continues with his or her paramour will be forever barred
from jointure, dower, or curtesy, unless the deserted spouse voluntarily
becomes reconciled to and lives with the deserting spouse (sec. 3:39-2).
A widow may be barred of her dower by jointure (sec. 3:39-4). See
Number 17 as to bar by will in some cases.
1 Malafjue v. Marion (1930), 107 N. J. Eq. 333, 336 ; 152 Atl. 637.
2 Gerhardt v. Sullivan (1930), 107 N. J. Eq. 374 ; 152 Atl. 663.
3Stabel v. Gertel (1933), 11 N. 3. Mise. 247: 165 Atl. 876.
4 Kicey v. Kicey (1933), 112 N. J. Eq. 459, 464 ; 164 Atl. 684.
16. Provision for the Surviving Spouse During Administration of
the Estate.
Quarantine.
Until dower or curtesy is assigned, the widow or widower may occupy
the mansion house of the deceased spouse, “and the messuage or planta
tion belonging thereto,” without liability for rent (sec. 3: 37-4).
The widow’s possession or quarantine is an incident only to her
dower, belonging to that right and inseparable from it.1
“* * * The right of quarantine is a right which exists for the
benefit of a widow and is given to her as a means of enforcing her dower
right so as to prevent the executors of an estate from refusing to assign
dower. In order to give additional strength to this provision, the law
imposes no obligation on a widow, holding by virtue of her right of
quarantine, to pay taxes or make repairs.”2
Exemption for Benefit of Widow or Child.
The wearing apparel of any person who dies leaving a family re
siding in the State, and his personal property to the value of $200 are
exempt for the use of his family against all creditors and before any
distribution or other disposition of such property; subject, however,
to provisions of the decedent’s will. Every person residing in this
State at the time of his death, who leaves a widow or child residing in
his family at his death, is deemed to have left a family entitled to the
benefits of this exemption (sec. 3: 9-7). The widow of the decedent,
or his executor or administrator, may select from the completed in
ventory personal property so allowed as exempt, up to the value of
$200. Property thus selected thereafter belongs to the family and
remains for their use (sec. 3: 9-8). See also Numbers 3 and 5.
Allowance to Widow or Children Pending Contest or Probate of Will.
When the probate of a will is contested, the authorized court, upon
proper petition by the widow or other person designated by statute,
NEW JERSEY
11
may order payment from the income of the estate of such an allowance
for the support and maintenance of the widow or child or children as
the court deems just. A widow may receive the benefit of this provis.h.e had ^en ceremonially married to the decedent, and
was living with him as Ins wife at the time of his death (sec. 3: 2-29).
Summary Administration.
Where t he total value of the real and personal assets of an intestate
decedent does not exceed $200, the. surviving spouse is entitled abso
lutely to the property without administration and free from the lien
ot all debts of the decedent (sec. 3:7-8).
Deceased Employee’s Wages.
Unpaid wages not exceeding $75 due to a deceased employee may be
paid without an administration, to such employee’s surviving wife,
child or children father or mother, sister or brother, preferring such
davsTft "\ne °rdtr nETjd • Such Payment, may not be made until 30
days after the employee’s death (sec. 34:11-30).
1 Bleecker v Hcnnion (1872). 23 N. J. En 123 125
2 Asmus v. Asmus (1937), 122 N. J. Eq. 485 487 ; 194 All. 884.
17. Disinheritance of Husband or Wife by Will of Deceased
spouse—Survivor’s Alternative.
When a husband or wife makes a valid devise of real estate to his or
h-fe°r oth®rwise> without expressing whether or not it
s not
f T ll6U °r bar of d?wer or cnrtesy, the surviving spouse
nW , !; «° d°Wlr or curtesy m any real estate devised by the will,
unless within 6 months after probate of the will, he or she fifes a writ
ten refusal to receive the real estate so devised to him or her instead of
dower or curtesy m other real estate.” The filin<r of such a refus'd
3® PJ“°lbed by statute, gives effect to the right of dower or curtesy (sec!
liprwvJwt a TJI sPecdj;'al,.v provides that the gifts to the wife are in
dlSfnt ma'T be filed after the 6-month period, as
this statute does not apply m such a case.1
bee Number 14.
1 First Nat. Bank v. Scott (1931), 109 N. J. Eq. 244, 245, 246; 156 Atl. 836.
II.—MARRIAGE AND DIVORCE
18. Age of Consent to Marriage—Men and Women.
A marriage license may not be issued to a minor under the age of 21
or UI}der the age Of 18 years if a female, without the
consent of the minors parents, parent, or guardian, if there be any.
tench consent must be duly certified m the presence of two reputable
witnesses, and delivered to the licensing officer.
1
The required consent may be waived on the application of a male
minor under 21years of age who is under arrest on a charge of sexual
intercourse with a single, widowed, or divorced female of good repute
tor chastity who has thereby become pregnant (sec. 37: 1-6).
Hut this statute has not changed the common-law rule, under which
females at 12 [and males at 14] years of age may consent to marriage.
fi”cb \ ™amage is not void but voidable only, and may be ratified by
IZll
or 5he !“tain5 the
2 Fodor v. Kunie (1920), 92 N. J. Eq. 301, 305 ; 112 Atl. 598.
ot 18 years-"
THE LEGAL STATUS OF WOMEN
12
19. Validity of Common-Law Marriage.
Common-law marriages are void if contracted after December 1,
1939 (R. S. Cum. Supp. 1938-1940, sec. 37:1-10).
20. Health Certificate Requisites Prior to Issuance of Marriage
License—Men and Women.
Each applicant for license to marry must file with the licensing
official a certification from a qualified physician that a standard blood
test for syphilis has been made and that in his opinion the disease either
is not present, or if present, is not in a communicable stage.
.
A statement from the testing laboratory, containing prescribed in
formation, must accompany the certificate. The test must have been
made within the 30-day period immediately preceding the issuance oi
tll6 llC611S6.
Exception to the law is made only in certain emergency cases pre
scribed by statute. (R. S. Cum. Supp., 1938-1940, secs. 37: 1--0
No marriage license may be issued when either of the contracting
parties, at the time application is made, is infected with gonorrhea,
syphilis, or chancroid in a communicable stage, is under the influence
of intoxicating liquor or a narcotic drug, or is an imbecile, epileptic,
or of an unsound mind. Nor may such a license be issued to a person
who is or has been an inmate of an insane asylum or institution Ipr in
digent persons, unless it is shown that such person has been satisfac
torily discharged (sec. 37:1-9).
.
[It is provided in the criminal code that: “Any person who, knowing
himself or herself to be infected with a venereal disease
*
, shall
marry, shall be guilty of a misdemeanor” (sec. 2:150-1), and any per
son of sound mind who marries, or assists any other person to marry,
a person known by him or her to have been confined in a public institu
tion as an epileptic, or insane or feeble-minded person, unless satis
factorily discharged, is guilty of a misdemeanor (sec. 2:
The contracting parties are required to appear in person before the
licensing officer, and attest under oath the truth of the facts respecting
the legality of the proposed marriage as set forth in the form supplied
by the State bureau of vital statistics. The testimony given must be
verified by a witness of legal age residing in the municipality m which
the license is to be issued. The license may be issued only if no legal
impediment to the marriage is shown. Any applicant who know ingly
gives false answers in such testimony is guilty of perjury (sec. 37:1-8)
Any licensing officer who issues a marriage license except as provided
by the statute is guilty of a misdemeanor (sec. 37:1-11).
Waiting Period.
.
.
Forty-eight hours must elapse between application tor and issuance
of a license to marry. License must be obtained by the contracting
parties at least 24 hours prior to the time the ceremony is to be per
formed, and is valid only for 30 days from the date of issuance (sec.
37:1-4).
21. Interstate Cooperation in Marriage Law Enforcement.
Generally the established rule is followed, that a marriage which is
valid where performed is valid everywhere.1
1 ^turm v. Sturm (1932), 111 N. J. Eq. 579, 582; 163 Atl. 5.
NEW JERSEY
13
22. Grounds for Marriage Annulment—Respective Availability to
Man or Woman.
A decree of nullity may be rendered when —
(1) Either of the parties has a wife or husband living at the time of
a second or other marriage;
(2) The parties are within the degrees of kindred prohibited by law;
(3) The parties, or either of them, were at the time of marriage
physically and incurably impotent, provided the applicant for annul
ment was ignorant of the condition at the time of the marriage, or has
not subsequently ratified the marriage;
(4) The parties, or either of them, were at the time of marriage in
capable of consent, and the marriage has not been ratified subsequently.
Such a decree may be granted—
(5) At the suit of the wife, when she was under the age of 18 years
• at the time of the marriage, unless the marriage is confirmed by her
after arriving at 18 years of age; or
(6) At the suit of the husband, when he was under the age of 18
.vears at the time of the marriage, unless the marriage is confirmed by
him after arriving at 18 years of age. No decree of nullity will be
made where a child of the parties has been born, either before or after
the marriage, or is likely to be born, unless the court, upon an examina
tion of all the facts, concludes that such a decree will not be against
the best interests of the child (sec. 2:50-1).
23. Grounds for Divorce—Respective Availability to Spouses.
Divorce from the bond of matrimony may be decreed for the follow
ing causes: Adultery by either of the parties; willful, continued, and
obstinate desertion for the term of 2 years; extreme cruelty by either
of the parties (sec. 2: 50-2). Communication of venereal disease by
the husband to the wife constitutes extreme cruelty.1
Divorce from bed and board may be decreed for the same causes
(sec. 2: 50-3).
In all cases of divorce from bed and board the court has discretion
to grant a separation forever or for a limited time, as the facts appear
to justify (sec. 2: 50-4).
An absolute decree granting annulment or divorce will be entered
on application of petitioner, at the expiration of 3 months from the
granting of a temporary decree, unless the case is appealed or with
drawn (secs. 2: 50-29 to 2: 50-31).
1 Gartner v. Gartner (1931), 109 N. J. Eq. 112 ; 156 Atl. 678.
III.—PARENTS AND CHILDREN
24. Services and Earnings of Minor Children—Parents’ Respec
tive Rights.
The father and mother of a minor child are equally entitled to its
services and earnings. If one parent is dead, has abandoned the child,
or has been deprived of its custody by court decree, the other is entitled
to its services and earnings.
The parents may sue jointly for loss of the wTages or services of their
minor child when such loss is occasioned by an injury, wrongfully or
negligently inflicted upon such child. If one parent is dead, or'has
14
THE LEGAL STATUS OF WOMEN
abandoned the child, or has been deprived of its custody by court
decree, or refuses to sue, the other may sue alone (sec. 9: 1-1).
25. Guardianship of Minor Children—Parents’ Respective Rights.
When any minor comes into ownership of real or personal estate,
the authorized court may appoint either parent, or other suitable per
son, guardian of the estate (sec. 3:7-28).
Wlren the total value of the assets of the minor’s estate does not
exceed $100, either parent is entitled to receive the property for the
minor’s use and benefit, without being appointed guardian, upon execu
tion of proper affidavit (sec. 3 :7-29).
When a controversy has arisen between the parents and a court de
cree is required to adjust the differences, in the absence of misconduct
the rights of both parents to the custody of their infant children are to
be held equal, and they are to be equally charged with the children’s
care, nurture, education, and welfare; the happiness and welfare of
the children are to determine the custody or possession (sec. 9:2-A).
26. Appointment of Testamentary Guardian for Minor Children—
Parents’ Respective Rights.
Either parent, whether over or under the age of 21 years, may dis
pose by deed or will of the custody and tuition of any of his or her
minor unmarried children, including any unborn at the time of the
appointing parent’s death (sec. 3: 7-14). Such disposition by ap
pointment is effective only upon the written consent, duly witnessed,
of the other parent, if both parents are living (sec. 3: 7-15).
If no appointment was made, as provided by statute, during the
life of both parents, the surviving parent may appoint by will a guar
dian for his or her minor child or children in all cases in which one
parent is authorized to make such appointment with the consent of
the other (sec. 3: 7-16).
27. Inheritance from an Intestate Child—Parents’ Respective
Rights.
Real Estate.
When a person dies intestate as to any real estate owned in his own
right in fee simple, and leaves no lawful issue, no brother or sister of
the whole blood nor lawful issue of such brother or sister, but leaves
both father and mother, the inheritance goes to the father and mother
as tenants by the entirety in fee simple. If only one parent survives
the decedent, the property goes solely to that parent, unless decedent
received it by descent, will, or gift from the deceased parent, in which
case the property descends as if both parents had predeceased the
decedent.
These provisions for inheritance do not apply to any real estate pur
chased by the deceased spouse during marriage and passing under the
statute to a surviving spouse (sec. 3:3-6). Nor do these provisions
bar the marital rights of a surviving spouse of the deceased child (sec.
3:3-15). See also Number 15.
Personal Property.
When the decedent leaves no husband or widow, and no child nor
legal representative of a child, personal property not disposed of by
NEW JERSEY
15
W1 ’ rei}iaining after payment of debts, funeral charges, and lust ex
penses, is divided equally among the parents and brothers and sisters,
and the representatives of deceased brothers and sisters. Such repre
sentatives are limited to the children of the deceased brothers and
sisters (secs. 3: 5-1, 3: 5-4).
28. Support of Children Born Out of Wedlock—Parents’ Respec
tive Responsibility,
A child born out of wedlock is entitled to support and education
irom its father and mother to the same extent as if born in lawful wed
lock (sec. 9:16-2).
Proceedings to enforce these obligations may be maintained by one
parent against the other by the person having physical custody of the
c lild, or, if the child is likely to become a public charge, by the over
seer ol the poor where the parents or one of them reside (sec. 9: 16-3).
(sec9 A6^4)edieS supplement those Provided by bastardy proceedings
The mother of an illegitimate child has exclusive right to its custody
and control The putative father has no right of custody, control, or
access to such child without the mother’s consent (sec. 9: 16—1).
Under the bastardy statute, when it appears that a child born or to
be born out of wedlock is likely to become a public charge, filiation pro
ceedings may be instituted as prescribed by law. If at the trial the
pf®rn)ty 0±
child is established, the magistrate will make an order
ot filiation. I his order must specify the sum to be paid by the father
weekly or otherwise, for the child’s support, and the sum to be paid
f or the mother s confinement expenses if she is in indigent circum
stances. The father is charged also with the costs of the proceedings,
and must give bond for his compliance with the court’s order Failure
to pay costs or to execute the required bond subjects the father to
imprisonment until the requirements are met. Any breach in the
'("et'sfT'lu/to 9b°17-31)y ** pr0Secuted by the designated authority
29. Inheritance from Child Born Out of Wedlock—Mother’s
Kight.
The mother of an illegitimate child inherits its intestate estate, both
J1 r P^530113,1’ m the same manner and to the same extent as if the
child had been born m lawful wedlock (secs. 3:3-10, 3-5-71 See
Number 27.
’ '
B.—POLITICAL RIGHTS
30. Domicile of Married Women.
The domicile of a married woman is established by the same facts
m u®?,° Jnw af that of any other person for the purposes of voting
omce holding, testacy, intestacy, jury service, and taxation (sec. 37:
In other cases, the general rule is applied that the “domicile of the
wife is the domicile of the husband—and she can acquire a separate
domicile only by his consent, acquiescence or abandonment or by con
duct on his part amounting to a matrimonial offense.”1
1 Brown V. Brown (1933), 112 N. J. Eq. 600, 604 ; 165 Atl. 643.
16
THE LEGAL STATUS OF WOMEN
31. Public Office—Eligibility of Women.
The right of citizens of the State to hold office or employment is co
extensive with their right to vote, is equal as to all citizens, and can
not be denied or abridged on account of sex or marital status. Such
equal rights and privileges extend to all offices, boards, commissions,
or other public service in the State and its political subdivisions of
whatever nature or kind (R. S. Cum. Supp. 1941-1944, sec. 10: 1-1 as
amended).
32. Jury Service—Eligibility of Women.
Women who possess the statutory qualifications required for jury
service are eligible to serve as either grand or petit jurors (sec. 2:
8^Exemptions allowed from jury service are available without sex
distinction (secs. 2: 86-1 to 2: 86-4).
Special Topics.
Teachers' Equal Pay—Female teachers in the public schools must be
paid compensation equal to that paid to male teachers holding similar
positions and employments with similar training and terms of service
i R.S. Cum. Supp. 1945-1946, sec. 18:13-10.1).
TVomen Lawyers—Official Name—A woman lawyer is requned on
her marriage to file with the clerk of the Supreme Court a sworn state
ment declaring the form of name she will use for official purposes.
(R. S. Cum. Supp. 1941-1944, sec. 2:21-14).
O
