Other Legal Consequences of Marriage: Conjugal Rights and Remedies
In 1857, as we shall see, the Matrimonial Causes Act established a procedure whereby the Court for Divorce and Matrimonial Causes could grant divorce decrees, thereby terminating the parties’ marital status, and permitting them to remarry. Divorce came to dominate the Court’s caseload;1 but the Court was concerned not only with divorce but also with the other ‘matrimonial causes’ (nullity of marriage, restitution of conjugal rights, judicial separation, and jactitation of marriage) previously dealt with in the Ecclesiastical Courts.2 In addition, the 1857 Act gave the Court for Divorce and Matrimonial Causes3 power to award a husband damages against the man with whom his wife had committed adultery; and statute4 gave the Court power to make orders for the protection of the wife’s property.
Notwithstanding the dominance of divorce, these other ‘matrimonial causes’ should not be overlooked. The law of nullity has been dealt with elsewhere in this book.5 Petitions for jactitation of marriage—seeking a decree of perpetual silence against a person falsely boasting that he or she is married to the petitioner—became so rare that no more than a footnote explanation is (p.143) required.6 But the remedies of restitution, separation, and damages for adultery have considerable conceptual importance: they all reflect the fact that in 1857 marriage was still seen as a legal relationship which gave rise to legally enforceable rights and duties. In the latter part of the twentieth century this approach increasingly seemed outdated; and the legislative response betokens a changed view of the relationship between the family and the law. Less summary treatment of restitution, separation and damages for adultery therefore seems appropriate.
Enforcing the obligation to live together: restitution of conjugal rights
The Ecclesiastical Courts had been concerned to enforce the obligations of matrimony, which included the duty of husband and wife to ‘live together after God’s ordinance’.7 This they did by making decrees directing the husband8 to take his wife home ‘and receive her as his wife’.9 Originally the pastoral role of the church was emphasised: excommunication was the ultimate sanction for failure to comply with such an order. But in 1813 the Ecclesiastical Courts Act substituted committal to prison for excommunication as the ultimate sanction, and occasionally men and women were imprisoned for disobedience to such an order.10 In 1857 the newly established Court for Divorce and Matrimonial Causes11 inherited this jurisdiction from the Ecclesiastical Court;12 and each (p.144) year, the Divorce Court made a handful of decrees.13 It seems reasonable to suppose that few petitioners believed they could in this way actually compel an errant spouse to return and that they were motivated more by the prospect of the Court exercising its power14 to make ‘such order for the payment by the husband of alimony to the wife’ as it thought just.15 But in 1882 Mrs Georgina Weldon16 earned her place in the history of law reform:
Mrs Weldon, acting in person, petitioned for Restitution of Conjugal Rights. Her husband at first resisted her claim on the ground that she had committed adultery; but this defence was eventually dropped. The court accordingly granted Mrs Weldon the decree to which she was entitled.17 The husband—a figure of some prominence in London society18—accepted his obligation to support her: he made monthly payments of £500 (perhaps £30,000 in year 2000 values), rented Acton House in Acton Middlesex (at the time a no doubt agreeable West London village) for her to live in, and engaged two servants to attend on her. But, not unreasonably19 believing that ‘living together again could only entail certain misery on both of us’, he rejected her entreaties20 that they should (p.145) once again live together under the same roof. Mrs Weldon then applied to the court for a writ of attachment committing the husband to prison for disobedience to the court order. The President of the Probate Divorce and Admiralty Division of the High Court21 accepted her argument that a man was legally bound to live with his wife and that his marital obligations were not satisfied by providing a house, servants and financial support for her. The President held that he had no alternative but to issue the writ for the husband’s imprisonment although he made it clear that he felt such a sanction inappropriate.22
The Government responds: imprisonment not to be used to enforce obligation to live together
The government reacted swiftly.23 The Matrimonial Causes Act 1884 was passed through both Houses of Parliament without debate or even an explanatory Government statement and received the Royal Assent on 14 August 1884. The Act abolished the sanction of imprisonment for failure to comply with a restitution decree, and substituted a power for the court to make financial orders.24 Mr Weldon was thus spared the necessity of leaving the country to save himself from imprisonment;25 but for the history of the divorce law the most important feature of the Act was that it gave the wife the right immediately to petition for divorce if her husband had not only committed adultery but also failed to comply with a restitution decree.26 In this way the ‘Weldon Relief Act’ (as it was apparently called)27 enabled women to circumvent the policy of the Matrimonial Causes Act 1857 Act28 and get a speedy divorce against husbands who had done no more than set up house with another woman.
(p.146) In fact, it seems to have taken a surprisingly long time29 for solicitors30 to appreciate this, but by 1912 the Gorrell Royal Commission acknowledged that the device of obtaining a Restitution decree had become ‘an understood means of enabling a woman to obtain a divorce on the grounds of her husband’s adultery alone’, and that the decree had become in those circumstances ‘something of a sham’.31
Enforcing a restitution decree by self-help: the courts respond
The 1884 Act thus gave effect to the policy that it was oppressive and unnecessary32 to imprison those who preferred to live apart from their spouses. But the extent to which the courts were prepared to recognise the existence of legally enforceable ‘rights’ in the family context remained unclear. Only a few years later, a sensational case illustrated the difficulty:
In R v. Jackson33 a husband applied for and obtained a decree for restitution against his newly married wife, and set about enforcing it. Assisted by two young men (one a solicitor’s articled clerk) he seized her as she was leaving church in the Lancashire town of Clitheroe and forced her into a carriage, claiming to have used no more force than was absolutely necessary to separate her from the sister he believed to be responsible for what had happened. Mrs Jackson was kept in the husband’s house in Blackburn in charge of her sister and a nurse and she was visited by a doctor. The husband claimed that he showed her every kindness and consideration and that she had the free run of the house, (p.147) ‘doing just as she pleased, save leaving the house’; and that he ‘had offered several times to take her for a drive, but she had declined to go’. The wife’s relatives instituted habeas corpus proceedings; and the Court of Appeal34 rejected the husband’s argument that a husband had the right to enforce the ‘general dominion’ he had over his wife35 by imprisoning her if she refused him the conjugal rights to which a court had declared him entitled. Lord Esher MR36 regarded the 1884 Act as the ‘strongest possible evidence to shew that the legislature had no idea that a power would remain in the husband to imprison the wife for himself, not least because to accept this view would result in his being allowed to act37 as party judge and executioner.38
The Jackson decision was at the time unpopular in some quarters,39 and it was certainly widely misunderstood.40 But it is a landmark in family law: the decision recognises that the ‘rights’ which exist between husband and wife are of a different order than (say) the rights of the parties to a commercial contract. But the question of ‘how different’ remained difficult.
The lingering death of Restitution of Conjugal Rights
The Matrimonial Causes Act 1923 enabled a wife to divorce her husband on the ground of his adultery; and it was no longer necessary for a wife to seek a decree of restitution (no doubt devoutly hoping that it would not be obeyed)41 to free herself of her marriage to an adulterous husband. Until 1950, a wife might be advised to seek a restitution decree because the court would then be able to (p.148) make a maintenance order in her favour;42but the Matrimonial Causes Act 195043 gave her the right to seek a maintenance order simply on the ground of the husband’s wilful neglect to provide reasonable maintenance for her or the children. After that, it was not easy to see what useful purpose a restitution decree could serve;44 and the 1956 Morton Report accepted that there were no steps which the court could take ‘to enforce its order that conjugal rights be rendered’ and accepted that the order was in fact rarely obeyed.45 But the conservatively minded Commission declined to recommend abolition.46 Unhappily, case law was to show that, even in the second half of the twentieth century, by no means everyone appreciated the limited effect of the decree:47
In Nanda v. Nanda,48 a couple married in their native India and lived together there for a few weeks before the husband left to pursue his profession as a dental surgeon in England. Shortly after arriving here he began living with another woman and had children by her. Mrs Nanda then came to England, obtained a decree of restitution of conjugal rights and sought to enforce it by her own means, which included turning up at the husband’s home and surgery, insulting his partner, and eventually moving into the house. It was held that the husband was entitled to an order restraining his wife from even visiting the house. History does not record Mrs Nanda’s reaction to this refusal to give effect to what she could reasonably (but erroneously) regard as her legal rights. As the Judge remarked, anyone might misunderstand the form and effect of a decree of restitution of conjugal rights and it was all the more likely that a woman brought up in India would have been misled.
This case (like R v. Jackson) provides a convincing demonstration of the way in which the retention of legal forms dating from an earlier age may be mis-understood (p.149) by those not professionally trained in the law’s arcane mysteries. Only in 1970 was the right to seek a decree for restitution of conjugal rights abolished49 after a Law Commission report50 had convincingly demonstrated that retention would serve no useful purpose.
The decree of judicial separation: court-ordered separation?
The Matrimonial Causes Act 1857 gave the Court power to grant decrees of judicial separation. But this was more a change of vocabulary, done ‘for the sake of simplicity, and to mark it the more clearly from proper divorce’,51 than substance. The Act provided that the grounds on which the decree could be granted were to be the same as those in the Ecclesiastical Courts for a decree of divorce a mensa et thoro,52 and that a judicial separation should have ‘the same force and the same consequence as a divorce a mensa et thoro’.53 Not until 1937 did legislation spell out in English that the effect of a decree was to make it ‘no longer obligatory for the petitioner to cohabit with the respondent.54 Only in 196955 was the reference to the grounds for making a decree of divorce a mensa et thoro before 1857 finally removed from the legislation. In some respects, however, the 1857 Act did improve the position of the wife who obtained a decree: the Court could (unlike the Ecclesiastical Court)56 make orders for the custody, maintenance and education of the children;57 the Court had more extensive powers in relation to the award of alimony58 than had the Ecclesiastical Court, whilst the Act59 gave the judicially separated wife the legal status of a feme sole in respect of after acquired property and and also gave her capacity to sue in contract and tort.60
A judicial separation was in some ways the counterpart of the decree for restitution of conjugal rights, and the name was equally misleading. For a judicial (p.150) separation decree did not order the parties to separate; it merely terminated the legal duty to live together and in effect put a stamp of legal approval on the ending of any factual relationship between husband and wife.
Cruelty was long the ground most often relied on by petitioners,61 but the Ecclesiastical Courts had been reluctant to countenance separation, and since the end of the eighteenth century,62 had consistently held that the courts should interpret cruelty narrowly and that the duty of the court was to apply an ‘extremely strict’ criterion.63 Marriage was a lifelong obligation, for better or worse; and only behaviour which showed ‘an absolute impossibility that the duties of the married life could be discharged’ was to be sufficient ground for giving the parties the legal right to live separate and apart:
‘Mere austerity of temper, petulance of manners, rudeness of language, a want of civil accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offences in the marriage-state undoubtedly … but still they are not that cruelty against which the law can relieve. Under such misconduct … the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation.’64
The effect of this policy can be illustrated by decided cases which give some indication of what marriage meant in Victorian England:
In Smallwood v. Smallwood65 the husband, suspecting his wife had committed adultery, seized her by the throat, shook her and threw her to the ground. But no marks were left on her body. The Court rejected her petition: one violent act committed under excitement did not justify a finding that she could not safely live with her husband.
However, the test produced rather different results where the husband was the victim of an assault by his wife:
In Forth v. Forth66 the wife threw a pie and a bowl of milk at the husband, scratched his face, and constantly abused him and did things she knew would (p.151) annoy him. The Court held he was entitled to a decree because he might, in defending himself, be tempted to retaliate. A man had to put up with the illhumour of the woman he had married, but the moment she stepped beyond that mark and lifted her hand to her husband and subjected him to violence the court would accept that cohabitation was impossible.
In 1869, however, the Court did accept that wife abuse could be moral as well as physical:
In Kelly v. Kelly67 the husband, a clergyman, became convinced that his wife was plotting and conspiring against him. He refused to sit next to her at meals, insisted on occupying a separate bedroom, and forbade her to visit the poor. The wife became ill, losing her sense of taste and smell. Her doctor advised her to leave home to prevent a further deterioration in her health. The court held that the husband’s abuse had broken her health and that the law could properly allow her to live apart from him. The Full Court rejected the husband’s appeal against the trial judge’s decision to grant Mrs Kelly a decree of Judicial Separation.
And in the course of the twentieth century there developed a much less demanding approach to what spouses could be expected to tolerate.68
However, the main significance of the history of judicial separation is that it constitutes the counterpart of the history of divorce. Critics claimed that a judicial separation was ‘in fact, a permanent divorce, though an imperfect one’;69 and in 1912 the Royal Commission on Divorce and Matrimonial Causes chaired by Lord Gorell70 reported that judicial separation
‘places the parties in a position in which, while remained married, they are subjected to enforced celibacy. Such separation … [is] productive of immorality, and misery to the parties, both the innocent and the guilty, and detrimental to the interests of the children’.71
Those who took this view naturally favoured extending the grounds for divorce so as to allow the parties to remarry. At the very least, they favoured restricting the courts’ power to grant judicial separation in cases in which it was clear that (p.152) the marriage had irretrievably broken down. Thus, the Gorell Report72favoured giving the court power, on application by the respondent, to grant a divorce instead of a judicial separation; but 40 years later the Morton Report regarded the fact that this would mean granting divorces against an applicant who had committed no recognised matrimonial offence as a conclusive objection to the proposal.73 The Morton Report recognised that judicial separation could impose ‘undue hardship’74 but nevertheless believed it ‘necessary’ to retain it75
‘In order to provide relief, where sufficient and appropriate grounds exist, for those who have religious or conscientious objections to divorce. We also consider it desirable that a remedy should be available for an injured spouse which, at the same time, keeps open the door for the possibility of subsequent reconciliation’.
Only the enactment of the Divorce Reform Act 1969 resolved the conflict of values:76 thereafter either party to a marriage, whether ‘guilty’ or ‘innocent’, could be confident that sooner or later he would be able successfully to petition for divorce; and judicial separation was retained primarily as a remedy in cases in which neither spouse wanted to divorce but did wish to have the legal effects of separation (for example, in relation to the upbringing of children and financial matters) formalised and in those few cases where divorce was not immediately available.77
Two further points need to be made. First, as we have seen, a judicial separation decree is an order that the petitioner and respondent be no longer obliged to cohabit, rather than an order that the respondent cease to live with the petitioner.78 It followed that the courts would not necessarily exclude the respondent from the matrimonial home; and it was not until the last quarter of the twentieth century that the legal system, against the background of increasing concern about the extent of domestic violence, finally recognised that effective remedies had to be found in legislation specifically directed at molestation and harassment79 rather than in any increased recourse to judicial separation (p.153) and that appropriate police and social work provision was necessary if these remedies were to be effective.
For many years only a small number of separation decrees were made: at the beginning of World War II there were under 30 a year, and thereafter for many years the number was well below a hundred each year. But there was a dramatic increase in the late 1970s.80 It is not easy to explain this, but it seems that the desire to obtain orders from the divorce court on financial matters and child upbringing was a powerful influence.81
Compensation for interference with marital relationships: damages for adultery
At common law, a cuckolded husband was entitled to claim damages in an action for so-called criminal conversation. By 1857 this form of action had become discredited.82 But there remained a feeling that sanctions of some kind should be imposed upon adulterers;83 and the Government accepted amendments84 to its Divorce Bill. The Matrimonial Causes Act 1857 abolished the (p.154) right to sue for criminal conversation;85 and provided86 instead that a husband could claim a sum of money from any person who had committed adultery with his wife and that such claims were to be heard87 and tried on the same principles that had governed criminal conversation actions in the common law courts.88 The Act also gave the court89 specific power to order a guilty co-respondent90 to pay the whole or any part of the costs91 of the proceedings.