The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5370 September 28, 1978 MARRIED WOMEN: Creditworthiness Disabilities of coverture CIVIL RIGHTS: Equal credit opportunity act CONSTITUTION OF MICHIGAN: Art 10, Sec. 1 (disabilities of coverture) The married women's property acts have not been superseded by Const 1963, art 10, Sec. 1; therefore, the separate estate of a wife is not liable for debts of her husband unless consideration has passed directly to her separate estate. Honorable Gary M. Owen State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion as to whether Const 1963, art 10, Sec. 1 has superseded the married women's property acts (1) to the extent that the separate estate of a married woman may be levied upon to pay joint obligations of the husband and wife even though no consideration flowed to the wife's estate. OAG, 1975-1976, No 5037, p 671 (November 8, 1976), held that a married woman may bind her separate estate for necessities as well as luxuries and therefore a creditor may not refuse to extend credit to a woman because of the fact that she is married. However, this conclusion does not mean that the defense of coverture may not be raised by a married woman if she has cosigned a note with her husband where no consideration has passed to her separate estate. In City Finance Co v Kloostra, 47 Mich App 276; 209 NW2d 498 (1973), the Court of Appeals dealt with the issue of whether married women's property acts have been superseded by Const 1963, art 10, Sec. 1, which provides: 'The disabilities of coverture as to property are abolished. The real and personal estate of every woman acquired before marriage and all real and personal property to which she may afterwards become entitled shall be and remain the estate and property of such woman, and shall not be liable for the debts, obligations or engagements of her husband, and may be dealt with and disposed of by her as if she were unmarried. Dower may be relinquished or conveyed as provided by law.' After carefully reviewing the debates of the Constitutional Convention and appellate decisions dealing with this question, the Court summarized its conclusions in the following terms: 'Although the married women's property act has gone far toward making a wife the equal of her husband, at least in the eyes of the law, it does not abolish all the common-law distinctions between husband and wife. One of the remaining distinctions is at issue herein: if a married man co-signs a promissory note with his wife, he is jointly and severally liable thereon. That means that any judgment entered on the note may be satisfied out of any property held jointly with his wife and also out of any property held by him separately, even though consideration for the note inured solely to the joint estate. On the other hand, if a married woman co-signs a promissory note with her husband, she is jointly liable thereon. That means that judgment entered on the note may be satisfied only out of property held jointly with her husband. The wife's separate estate is not liable, unless consideration for the note passed directly to her separate estate. Koengeter v Holzbaugh, 332 Mich 280 (1952). 'This distinction is, in reality, a 'disability of coverture,' for it exists only because the common law denied married women the capacity to make binding contracts and because our Legislature has not completely abrogated the common law. However, because the same incapacity can be used to avoid personal liability once a contract has been made, it is considered by many to be a 'defense of coverture' and as such a protection for married women.' 47 Mich App at 284-285 Subsequently, the Court in City Finance Co, supra, 47 Mich App 276 at 288; 209 NW2d at 505 stated: '. . . Thus, it is our opinion that those delegates who supported the provision at issue herein had no intention of making married women jointly and severally liable on joint obligations with their husbands.' Thus, although 1974 PA 246; MCLA 750.147a; MSA 28.344(1), prohibits a person from discriminating in the extension of credit on the basis of marital status, this provision does not overrule by implication the married women's property acts to the extent of denying a defense of coverture where a married woman's separate estate has not benefited from the extension of credit. The refusal of a person to extend credit to a husband because the co-signature of his wife is unenforceable is not, in my opinion, a refusal to extend credit based upon the marital status of the husband or the wife. In such a case, the eligibility for credit of each spouse is dependent upon the individual's own credit standing without regard to marital status, there being no legal requirement that a creditor grant credit to a person whose financial status does not warrant the extension of the credit. Therefore, since, as noted in Flynn v City of Fraser, 45 Mich App 346, 349-350; 206 NW2d 448 (1973), repeals by implication are not favored in the law, (see also Lansing School District v School District No 3, 327 Mich 436, 440; 42 NW2d 132 (1950)) all of the statutes involved must be given effect. It is therefore my opinion that, despite enactment of 1974 PA 246, supra, the defense of coverture is available to a married woman where a judgment is entered on a joint obligation with her husband unless consideration has passed directly to her separate estate. Frank J. Kelley Attorney General (1)
1911 PA 196, Sec. 11; MCLA 557.11; MSA 26.171.
1917 PA 158, Secs. 1-5; MCLA 557.51-557.55; MSA 26.181-26.185.