Restitution of conjugal rights
In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.
This could be brought against a husband or wife who was guilty of "subtraction"; that is, living away from their spouse without a good reason. If the suit was successful, the married couple would be required to live together again.[1]
In 1969 a
History
United Kingdom
English Law
Prior to 1813
Under the jurisdiction of the Ecclesiastical Courts, which controlled marriage regulations, desertion was not defined as a matrimonial offense, instead a deserted spouse could ask for a decree of restitution of conjugal rights. After such a decree was obtained, the other spouse had to return home and continue marital cohabitation - failure to do so was punished with excommunication.[4]
The Ecclesiastical Courts Act 1813
The Ecclesiastical Courts Act 1813 abolished the excommunication punishment, replacing it with imprisonment of up to six months.[4]
The Matrimonial Causes Act 1884
Under the
The Matrimonial Causes Act 1923
The Matrimonial Causes Act 1923 equalized the grounds for divorce of husband and wife, giving the wife the right to divorce her husband on the ground of adultery alone (previously only a husband had such a divorce right), so that asking for an order of restitution of conjugal rights was no longer as needed for wives.[4]
Supreme Court of Judicature (Consolidation) Act 1925
The Supreme Court of Judicature (Consolidation) Act 1925 repealed the Matrimonial Causes Act 1884. Failure to comply with an order of restitution of conjugal rights continued to be a ground for judicial separation, but would no longer be considered, on itself, desertion. In addition, failure to comply with a decree of restitution of conjugal rights also allowed a court to make provisions regarding finances, alimony, property, and custody of children.[4]
The Matrimonial Proceedings and Property Act 1970 (abolition)
The Matrimonial Proceedings and Property Act 1970 abolished the action of restitution of conjugal rights. By that time, the action was seen as outdated and was rarely used.[4]
Scotland
In Scotland, the legal action for "adherence" - the Scottish equivalent for restitution of conjugal rights - was abolished by Section 2(1) of the Law Reform (Husband and Wife) (Scotland) Act 1984.[5]
Ireland
The legal action for restitution of conjugal rights was abolished in Ireland by the Family Law Act 1988.[6]
Australia
In Australia the legal action for restitution of conjugal rights was abolished by the Family Law Act 1975 (Cth) s 8(2).[7] Therefore, since 1975 courts no longer have the power to make a "decree of restitution of conjugal rights" to enforce marital duties. One problematic provision today is considered to be Section 114(2) of the Family Law Act 1975, which remains on the books, and provides that a court can "make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights". Although this section is now obsolete (its last recorded use was in 1978;[7] and the 1991 High Court of Australia case of R v L (1991) 174 CLR 379, 398 criminalized marital rape (ruling that, if the common law exemption[8] was ever part of Australian law, it no longer was by 1991), the existence of such wording in the Family Law Act 1975 is argued to send problematic messages to the public; and in a 2010 report the Australian Law Reform Commission strongly recommended its abolition, writing that "Section 114(2) implies that there is a continuing obligation to render conjugal rights and provide marital services—obligations that no longer exist in law and which should not be assumed to form part of a marriage as a social or legal institution" and "The Commissions therefore consider that the power to make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights is unnecessary and inconsistent with current principles of family and criminal law, and, as such, should be repealed." (see section on Injunctions to relieve a party to a marriage from rendering conjugal rights).[9] Despite this, this provision still remains on the books.[10]
South Africa
In South Africa, the legal action for restitution of conjugal rights was abolished by the Divorce Act, 1979 (Act No. 70 of 1979), Section 14.[11]
Canada
In
Current situation in former British colonies and Commonwealth nations
English law was imported to many parts of the world through colonization, and so was the concept of restitution of conjugal rights, which continues to exist in law, in various forms, in some former
See also
References
- ^ William Blackstone (1753), Commentaries on the Laws of England, Book 3, Chapter VII "Of the cognizance of private wrongs", Section 1.2
- ^ The Law Commission (Law Com. No. 23) Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights
- ^ "Matrimonial Proceedings Act 1970, s.20" (PDF).
- ^ a b c d e f "Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights" (PDF). Retrieved 2020-02-10.
- ^ "Law Reform (Husband and Wife) (Scotland) Act 1984". www.legislation.gov.uk.
- ^ http://www.irishstatutebook.ie/eli/1988/act/31/enacted/en/html [bare URL]
- ^ a b Manager, Web (11 November 2010). "Injunctions for personal protection". www.alrc.gov.au.
- Sir Matthew Hale, who in his 1736 legal treatise Historia Placitorum Coronæ wrote that rape in marriage could not be recognized because the wife consents irrevocably to sexual intercourse with her husband as she "hath given up herself in this kind unto her husband, which she cannot retract". This was accepted as law until the late 20th century in most common law jurisdictions, including in England and Wales until 1991, when it was removed by the House of Lords in the case of R v R, and in Ireland until 1990, when it was removed by the Criminal Law (Rape) (Amendment) Act, 1990
- ^ Anonymous (27 July 2010). "Protection orders and injunctive relief". www.alrc.gov.au.
- ^ Family Law Act 1975, retrieved 2020-02-10
- ^ "Acts Online". www.acts.co.za.
- ^ a b c http://www.alri.ualberta.ca/docs/fr065.pdf Archived 2014-08-02 at the Wayback Machine
- ^ "Family Law Act, SA 2003". Retrieved 2020-02-10.
- ^ "The Family Maintenance Act, SS 1990-91, c F-6.1". www.canlii.org. Retrieved 2020-02-10.
- ^ "The Queen's Bench Act" (PDF). Retrieved 2020-02-10.
- ^ "Status of Bills / Bills, Statutes, Regulations / Proceedings / The Nova Scotia Legislature". nslegislature.ca.
- ^ "Matrimonial Statutes Repeal Act". nslegislature.ca. 27 November 2017.
- ^ Brunswick, Communications New. "An Act to Repeal the Divorce Court Act". www.gnb.ca.
- ^ "Redirect Page" (PDF). www.pssg.gov.bc.ca.
- ^ "eSocialSciences". www.esocialsciences.org.
- ^ a b "Manupatra Articles". www.manupatrafast.com.
- ^ "Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 1984". indiankanoon.org.
- ^ ""Will I Get My Dues … Before I Die?"" (PDF). Human Rights Watch. September 2012. Retrieved 2020-02-10.
- ^ "Supreme Court to look into plea against laws for restitution of conjugal rights". The Indian Express. 2019-03-06. Retrieved 2020-02-10.