ELECTIONS ‑- CITIZENSHIP ‑- MARRIAGE ‑- WOMEN ‑- LEGAL RESIDENCE OF MARRIED WOMEN
Insofar as legal residence for voting purposes is concerned, and for all other purposes, the common-law rule that the domicile of a married woman is the same as that of her husband unless they are separated has been abrogated by the adoption of Article XXXI, § 1 (Amendment 61) of the Washington constitution, commonly referred to as the "equal rights" amendment.
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March 26, 1975
Honorable Bruce K. Chapman
Secretary of State
Olympia, Washington 98504
Cite as: AGO 1975 No. 5
By recent letter you have requested our opinion on a question which we paraphrase as follows:
Insofar as legal residence for voting purposes is concerned, has the common-law rule that the domicile of a married woman is the same as that of her husband unless they are separated been abrogated by the adoption of Article XXXI, § 1 (Amendment 61) of our state constitution?
We answer this question in the affirmative for the reasons set forth in our analysis.
In a prior opinion issued by this office to the prosecuting attorney of Yakima county on September 13, 1946 [[to Lloyd L. Wiehl]],1/ it was concluded that for purposes of voting eligibility in this state a married woman's residence was to be deemed to be the same as her husband's unless they were separated and living apart. This conclusion was based upon a common-law doctrine of general acceptance, coupled with the proposition that the common law is the law of this state in the absence of a [[Orig. Op. Page 2]] statutory or constitutional provision to the contrary. RCW 4.04.010.
Apparently, the doctrine of marital residence upon which we based that opinion may be traced to ancient Roman law under which marriage created a theoretical identity of person and subjected the wife completely to the marital power of the husband.2/ This Roman concept seems to have been brought forward into Anglo-Saxon jurisprudence by the case ofArnott v. Groom, 9 D. (Sc. Sess. Cas. 2d Ser.) 142 (1846), in which it was extended so far as to dictate that a wife was powerless to select a domicile for herself even with the consent of her husband. M. W. Jacobs,The Law of Domicil, § 215 (1887). The only exception to this rule existed where the marital status had been dissolved by formal divorce or a divorcemensaetthoro. Barber v. Barber, 21 How. 582, 62 U.S. 582 (1858).
However, the philosophy underlying this view was never totally accepted in our own jurisdiction. As early as 1879, the Washington territorial legislature passed a statute by which it provided that:
"All laws which impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the husband, are hereby abolished, and for any unjust usurpation of her natural or property rights, she shall have the same right to appeal in her own individual name, to the courts of law or equity for redress and protection that the husband has: Provided,always, That nothing in this chapter shall be construed to confer upon the wife any right to vote or hold office, except as otherwise provided by law." Laws of 1879, p. 151, § 1.3/
[[Orig. Op. Page 3]]
Shortly thereafter the Territorial Supreme Court described the effect of this statute as follows:
"To us it seems that the relation between husband and wife thereby established was (with certain exceptions therein stated) one of absolute equality before the law." Rosencrantz v. Territory of Washington, 2 WTR 267 (1884) [[2 W.Ty.R. 267]].
However, it is obvious that this enactment ‑ extensive as it may have then seemed ‑ did not grant women the right to vote. More importantly, it did not serve to allow a wife to establish a domicile for herself different than that of her husband during the existence of their marriage. See,Buchholz v. Buchholz, 63 Wash. 213, 115 Pac. 88 (1911), in which the court expressly so ruled. Nevertheless, the statute does clearly display an early concern on the part of Washington lawmakers for the legal rights of women.
This concern continued to exist in 1888, one year prior to statehood. In January of that year the legislative assembly enacted a law granting women the right to vote4/ - although that statute was promptly declared by the Territorial Supreme Court to be violative of the enabling act under which statehood was about to be obtained.5/ Then, when the proposed state constitution was offered to the people for adoption in 1889, it was submitted along with two separate articles ‑ one to grant women the right to vote and one to prohibit the sale of liquor in this state ‑ but they were both, intemperately rejected. However, the constitutional language which was adopted did contain a provision giving the legislature the power to grant women the right to vote ‑ but only in school elections.6/
Some twenty years later, Washington's male voters adopted the 5th Amendment to the state constitution by which they totally prohibited the denial of the franchise on account of sex.7/ Ten years after that the federal constitution was [[Orig. Op. Page 4]] likewise amended to the same effect by the addition of the 19th Amendment which prohibited the states from engaging in sexual discrimination in voting.8/ Nevertheless, through all of this the doctrine of marital residence continued to survive. Accord, our 1946 opinion, supra.
Finally, however, came the adoption of Amendment 61 to our state constitution. This amendment, now identified as Article XXXI, was approved by the voters in 1972, and provides in its first section, simply, that:
"Equality of rights and responsibility under the law shall not be denied or abridged on account of sex."
Your question, as above paraphrased, is whether this constitutional provision may at long last be said to toll the demise in Washington of the common-law doctrine that a married woman's residence is that of her husband unless they are separated. Our unhesitating answer is that it does. The simple yet forceful words of what has commonly come to be referred to as the "equal rights" amendment lead us to the irrefragable conclusion that this common-law concept may no longer be applied in our state because to do so would impose a legal impediment upon not only the voting rights of women but all other rights as well which may be dependent upon residence or domicile.
In effect, the common-law doctrine establishes one set of rules to be applied in determining the domicile of men, married or otherwise, and another set of rules to be applied in the case of married women. This, as we view it, is precisely the sort of thing that Amendment 61, supra, was aimed at prohibiting.
Accordingly, in direct answer to your question, it is our opinion that at the present time in this state, the voting residence of a married woman is to be established on the basis of precisely the same legal principles as apply in the case of any other person, male or female, married or unmarried. The common-law rule to the contrary, [[Orig. Op. Page 5]] as above described, is no longer a viable rule of law in this state.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
2/See, M. W. Jacobs, The Law of Domicil, § 210 (1887).
3/Now codified as RCW 26.16.160.
4/Laws of 1887-88, chapter IV, p. 93.
5/See, Bloomer v. Todd, 3 WTR 599 (1888) [[3 W.Ty.R. 599]].
6/Article VI, § 2.
7/Laws of 1909, p. 26, § 1.
8/This amendment did not grant the right to vote, it merely prohibited discrimination based upon sex.State v. Mittle, 120 S.C. 526, 113 S.E. 335 (1922), error dismissed 260 U.S. 705 (1922).