Men, Women and Property in Sixteenth-Century Scotland from their Testaments

Abstract

'The deidis part is ... .' Such is the key phrase in the settlement of worldly possessions (but not land) after a death in Scotland. Man or woman, young or old had their part in the family inheritance which could not be denied them. In Scottish custom and law marriage was a very different contract from English law. A wife in Scotland kept her name and although her tocher was merged with her husband's property her rights remained unassailable. Although after the act of the Scottish parliament, 1573 cap. 55, desertion was made a cause of divorce, and the offending party lost his or her conventional provisions this was not a common phenomenon. I So far as most property rights went women were at least the equal of younger sons. From her marriage, a woman had rights to real property -called terce and courtesy -which were legalliferents at common law. Terce became due only after a year and a day of marriage or the birth of a living child.2 Ownership of real property, however, was an advantage enjoyed by only a minority and this paper is concerned with property which could be disposed of by Testament, that is moveable estate. Here too, a woman's rights were equivalent to a man's.