Marital power
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In civil law jurisdictions, marital power (Latin: potestas maritalis, Dutch: maritale macht, Afrikaans: maritale mag) was a doctrine in terms of which a wife was legally an incapax under the usufructory tutorship (tutela usufructuaria) of her husband. The marital power included the power of the husband to administer both his wife's separate property and their community property. A wife was not able to leave a will, enter into a contract, or sue or be sued, in her own name or without the permission of her husband.[1] It is very similar to the doctrine of coverture in the English common law, as well as to the Head and Master law property laws.
The marital power derives from Germanic sources of the Roman-Dutch law, from which many features derive from (provincial) Roman law. In the earlier Roman law, a wife moved from the manus (guardianship) of her father to that of the father of her husband, an older brother of her husband or her husband; the "pater familias" or master of all persons and owner of all property in a familia. In the last century of the Republic and throughout the Empire a form of marriage did evolve which did not move a wife under the authority of her husband or his father, she remained under the authority of her family.[2][3] Women later became independent by law (sui iuris) but had a male guardian appointed to them.[4] Under the Germanic law as described by Johann Gottlieb Heineccius:
The marital power and guardianship of the husband is the right of the husband to rule over and defend the person of his wife, and to administer her goods in such a way as to dispose of them at his own will, or at any rate to prevent his wife from dealing with them except with his knowledge and consent.
— Elementa Juris Germanici.[2]
In another form of Germanic marriage, Friedelehe, the control over the wife remained with the head of her family.[5]
From the Germanic law sources it became part of the law of the Netherlands. When Dutch colonists settled at the Cape in the 17th century, they brought along the Roman-Dutch law, which managed to survive the British conquest in 1805. The spread of the Roman-Dutch law introduced the marital power doctrine so that it eventually formed part of the law of marriage in South Africa, Lesotho, Swaziland, Namibia, Botswana and Southern Rhodesia (as Zimbabwe was then known).