'When Women Were Aliens: The Neglected History of Derivative Marital Citizenship' (Sydney Law School Research Paper No. 12/47) by Helen Irving
notes that
Between the mid-nineteenth and mid-twentieth centuries, in virtually every country in the world, women who married foreign men were stripped of their citizenship, and turned into aliens in their own country. Marital denaturalization laws were supported by the international community until well after the Second World War: single citizenship, family unity, diplomatic convenience, and inter-state comity, were treated as imperatives that overrode women’s independent personal status. Such laws, which expanded at the very time when women were gaining legal and political rights, impacted radically, sometimes tragically, on individual lives, including rendering many thousands of women stateless. This essay gives an account of the emergence and evolution of such laws, with particular reference to Britain and the United States. It provides a ‘snapshot’ of individual cases, and an overview of the international community’s response.
Irving comments that
these laws were not, as might be thought, a feature of the distant past, nor a consequence of the old doctrine of ‘coverture’, under which a woman’s legal identity – her right to hold property, enter into a contract, and assume legal obligations – was subsumed under her husband’s. The derivative character of women’s citizenship is much more recent. Indeed, the laws that forced a married woman to follow her husband’s nationality were passed by democratic parliaments, at a time when coverture had been almost completely abandoned. Decades after the first Married Women’s Property Acts (1839 in the U.S. (Mississippi); 1870 inthe U.K.), the laws governing a woman’s nationality might still have been described in words identical to those of Blackstone in 1769: "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband".
Derivative nationality coincided temporally, furthermore, with the expansion of the political rights we readily associate with citizenship. By the date of Dowson’s letter, women in many parts of the world, including Britain, the Dominions, and the U.S. could vote and stand for public office. A significant number, indeed, were already Members of Parliament. Women were demonstrating their capacity – long impugned by anti-suffragists – to participate as active citizens and to enjoy their new status. But to do this, they had to be – and had to remain - citizens in the first place.
The fall of the dice depended on love. Under nationality laws that were virtually universal between the mid-nineteenth and mid-twentieth centuries, a woman who married a foreigner became, in her own country, an alien. A woman whose husband - with or without her consent - was naturalised in a foreign country, automatically lost her own citizenship. In most countries, at the same time, a foreign woman who married a citizen was automatically naturalised in his nationality, and a husband’s naturalisation had the same effect. Forsaking all others, in citizenship as in love, the marriage vow was simultaneously an oath of denaturalisation. This, the British government liked to claim, was the practice of ‘most civilised countries.’
Stated as such, it sounds simple (if unjust, and certainly inegalitarian: no country made a man’s citizenship dependent on that of his wife). But beyond the question of justice, the operation of the law was, in reality, horrendously complex. The numbers, to start with, were far from insignificant (in 1922, for example, an estimated 30,000 of the alien women living in Britain were British-born, former subjects). The lives of numerous individual women were dramatically affected, sometimes tragically. Although the automatic naturalisation of foreign wives conferred benefits on many, its effect – like the automatic denaturalisation of women who married foreigners - was to subordinate, even infantilise, women as a class, long after they had begun to emerge as political adults. The women ... understood not only the practical, but also the existential injury of derivative citizenship: the psychological affront, even to those who suffered no personal disadvantage. ....
Few historians have recorded these events, and lawyers' treatises on citizenship rarely give them more than a glance. Histories of international and imperial relations are almost uniformly silent. There are some valuable studies of marital denaturalisation in particular countries, especially the United States, but most treat the law as peculiar to the country in question. Few have seen the larger dimensions. ...
It is a story of the sacrifice of the identity (and often security) of vulnerable individuals against the interests (sometime imperatives) of inter-state relations. It is a story, not necessarily of deliberate hostility (although there was that), but mostly of disregard compounded by stereotypes - one that speaks acutely to our time. The global movement of persons seeking refuge or reward, the persistence of statelessness (which still affects more women in the world than men), and the growing demands on governments to accommodate pluralism, have thrown into relief the importance of citizenship and the existential consequences of being (or not being) a particular type of citizen. Ayelet Shachar has called this 'the birthright lottery' but it has not been a matter of birth alone. It has also been, profoundly, a matter of love and of gender. When we factor in the latter, we open a window on a human story, still unfinished, still relevant, and deserving to be known.
