Wednesday, 23 May 2012

Marriage in English law

To provide some context to the current debate about extending marriage to same-sex couples, it might be useful to look at what marriage has traditionally meant in English law.

What is marriage?

The classic judicial definition of marriage was given by Lord Penzance in Hyde v Hyde (1866) LR 1 P&D 130.  Marriage, said His Lordship, is
the voluntary union for life of one man and one woman, to the exclusion of all others....
In similar vein, Sir James Hannen stated in Durham v Durham (1885) 10 PD 80 that marriage is
an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others.
The phrase "for life" must be read as being aspirational and as being subject to the divorce legislation (the first civil divorce statute being the Matrimonial Causes Act 1857, which was already in effect when Lord Penzance made the statement above).

Marriage is categorised in law in several ways.

1.  It is a contract.  More expressly, it is "a civil contract regulated and prescribed by law and endowed with civil consequences" (Dalrymple v Dalrymple (1811) 161 ER 665).  This seems to be a generally accepted principle.  The marital contract consists of "a consent on the part of a man and woman to cohabit with each other, and with each other only" (Harrod v Harrod (1854) 69 ER 344).

2.  Marriage changes the legal status of those who enter it (Hyde v Hyde; Nachimson v Nachimson [1930] P 217; Gottliffe v Edelston [1930] 2 KB 378).

3.  Marriage has also been defined as an "Institution" (Hyde v Hyde).  (This recalls Groucho Marx's comment "who wants to live in an institution?")

The most recent succinct summary of the legal characterisation of marriage was provided by Munby J in Sheffield City Council v E [2005] 2 WLR 953:
Marriage... is a contract, formally entered into.  It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others.  It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance.

The unity of husband and wife

One idea that we find in premodern legal sources is that a husband and wife are a single person - and that that person is, effectively, the husband.  In former times, a wife was "feme covert", to use the law-French term, and she had no legal personality or rights of her own.

It is not wholly clear what the sources for this doctrine were, but they seem to have included the Book of Genesis ("Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh") and the notion that the wife could not act on her own account because her husband's influence prevented her from having a free will of her own.

The doctrine appears in the 12th century Dialogus de Scaccario (2.18) and in the jurist Bracton in the 13th century ("husband and wife, who are, so to speak, a single person, because they are one flesh and one blood").  In the 16th century, Sir Edward Coke wrote that a husband cannot grant tenements to his wife because "his wife and he be but one person in the law" (1.10.112a).  In Manby v Scott (1663) 1 Mod. 124, Sir Robert Hyde said:
Every gift, contract, or bargain, is, or contains an agreement;... but a feme covert cannot give a mutual assent of her mind, nor do any act without her husband....  [O]ur law put the wife sub potestate viri [under the power of her husband], and says, quod ipsa potestatem sui non habeat, sed vir suus [that she herself does not have power over herself, but her husband does] and she is disabled to make any grant, contract or bargain, without the allowance or consent of her husband.
In the 18th century, Sir William Blackstone put forward the doctrine in its classic form:
[T]he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband....
In fact, it looks like the doctrine was never applied consistently even in mediaeval times.  For example, a wife could be charged with a crime in her own name (though she could not be a party to civil litigation), and the ecclesiastical courts considered her to be a separate person.

In the 19th century, the courts began to dismantle the traditional doctrine.  In Wenman v Ash (1853) 13 CB 836, Maule J said:
In the eye of the law, no doubt, man and wife are for many purposes one: but that is a strong figurative expression, and cannot be so dealt with as that all the consequences must follow which would result from its being literally true.  For many purposes, they are essentially distinct and different persons....
In 1891, the Court of Appeal explicitly rejected the words of Blackstone quoted above (R v Jackson [1891] 1 QB 671).  Parliament also intervened, giving married women the right to their own property in the Married Women's Property Acts 1870, 1882 and 1893.

Nevertheless, judicial attitudes were slow to change.  The traditional doctrine continued to be affirmed in some cases, such as Phillips v Barnet (1876) 1 QBD 436 and Wennhak v Morgan (1888) 20 QBD 635.  As late as Gottliffe v Edelston [1930] 2 KB 378, McCardie J could still say that "in certain respects there should be a presumption of modified unity between husband and wife".

The current legal position was that set out by Denning LJ (as he then was) in Broom v Morgan [1953] 1 QB 597: the doctrine of the unity of husband and wife "has no longer any place in our law".  In Midland Bank Trust Co v Green [1982] Ch 529, Lord Denning MR (as he had by then become) stated that
the doctrine of unity and its ramifications should be discarded altogether, except in so far as it is retained by judicial decision or by Act of Parliament. 


It appears that a husband and wife are entitled to each other's consortium, or mutual society.  This is a Latin term which goes back to Roman law.

The older cases say that a man is entitled to his wife's "solamen et consortium" (consolation and society) (Young v Pridd (1626) 79 ER 679), to her "comfort, society and fellowship" (Macfadzen v Olivant (1805) 102 ER 1335), to her "comfort, benefit and assistance" (Stone v Jackson (1855) 139 ER 732), and to her "services" as well as her "comfort and society" (Brockbank v Whitehaven Junction Railway Co (1862) 158 ER 706).  In similar vein, the marriage service in the Book of Common Prayer uses the phrase "mutual society, help and comfort".

The notion of consortium is somewhat nebulous.  Lord Reid said that it "seems... rather to be a name for what the husband enjoys by virtue of a bundle of rights, some hardly capable of precise definition" (Best v Samuel Fox & Co [1952] AC 716).

If a wife denied her husband her society, the husband could sue her in the ecclesiastical courts.  The penalty was originally excommuncation, but this was altered to 6 months' imprisonment in the Ecclesiastical Courts Act 1813.  This state of affairs ended with the Matrimonial Causes Act 1884, when such conduct came to be classed as desertion for the purposes of the separation and divorce legislation.

For many years, it has been recognised that consortium is a mutual right owed by the husband to the wife as well as vice versa: see Place v Searle [1932] 2 KB 497.  If a woman is lawfully married, said Lord Greene MR in Baindail (otherwise Lawson) v Baindail [1946] P 122, it follows
that she is entitled to the consortium of her husband to the exclusion of any other woman [and] that he is entitled to the consortium of his wife....
This was underlined more recently by Munby J in Sheffield City Council v E:
In so far as the concept of consortium - the sharing of a common home and a common domestic life, and the right to enjoy each other's society, comfort and assistance - still has any useful role to play, the rights of husband and wife must surely now be regarded as exactly reciprocal.


Part of the traditional patriarchal conception of marriage involved the husband providing financial support for the wife, including providing a marital home.

Lord Greene MR stated in the 1940s that a wife "is bound according to our notions of law to live with him provided he gives her a suitable home" (Baindail (otherwise Lawson) v Baindail [1946] P 122).  A few years later, Karminski J stated that "so far as the husband is concerned there remains the duty to maintain [the wife]" (In the Estate of Park [1954] P 89).

A wife had to live in the home provided by her husband.  It was stated in Mansey v Mansey [1940] P 139 (see also King v King [1942] P 1):
[W]e have not yet got to the point where the wife can decide where the matrimonial home is to be, and if the husband says he wants to live in such and such a place then, assuming always that he is not doing it to spite his wife and the accommodation is of a kind that you would expect a man in his position to occupy, the wife is under the necessity of sharing that home with him.
This doctrine may be taken to have bitten the dust in the Domicile and Matrimonial Proceedings Act 1973, which abolished the presumption that a wife shares her husband's domicile.  As recently as Gurasz v Gurasz [1970] P 11, however, Lord Denning MR stated:
Some features of family life are elemental in our society. One is that it is the husband's duty to provide his wife with a roof over her head: and the children too.  So long as the wife behaves herself, she is entitled to remain in the matrimonial home.
Commenting on this last mentioned case, Munby J suggested in Sheffield City Council v E that the common-law duty of maintenance had been supplanted by the detailed provisions for maintenance on divorce or separation arising out of the legislation on marital breakdown:
I express no views as to whether or not that remains technically the law today, though the husband's duty, even if it still survives, would seem to be largely if not indeed wholly irrelevant in modern conditions, having for all practical purposes been supplanted by the statutes which give both spouses the right to apply to the court for financial relief and which, in particular, give both spouses reciprocal rights to seek maintenance from each other. But the thinking that underlies Lord Denning MR's observations is now surely completely obsolete.
Munby J also emphasised the equality that lies at the heart of modern marriage:
Today both spouses are the joint, co-equal heads of the family. Each has an obligation to comfort and support the other.  It is not for the husband alone to provide the matrimonial home or to decide where the family is to live. Husband and wife both contribute. And where they are to live is, like other domestic matters of common concern, something to be settled by agreement, not determined unilaterally by the husband.
And also:
[I]n my judgment it is no more relevant today to talk of the husband's duty to protect and maintain his wife than it is to talk of his wife's duty of submission....  [I]t is no more appropriate to talk of the husband's duty to protect or maintain than it would be to talk of the wife's duty to submit.
Another case similarly suggests that any duty of maintance which survives is unenforceable.  Ward J said in Re C (A Minor) (Contribution Notice) (1994) 1 FLR 111:
The strange state of our law is that there may be a so-called common law duty to maintain, but when one analyses what that duty is it seems effectively to come to nothing. Like so many rights, the right extends only so far as the remedy to enforce it extends... the common law has no remedy. The remedies to enforce a duty to maintain are the statutory remedies which are variously laid down in numerous statutes.

Control and domination

This is the darker side of the traditional understanding of marriage.

The classic view was stated in Bacon's Abridgement:
[T]he husband hath by law power and dominion over his wife, and may keep her by force, within the bounds of duty, and may beat her, but not in a violent or cruel manner....
At most, a wife could apply to the court for a writ of Supplicavit if her husband used extreme violence.

Attitudes were changing as early as the 18th century.  Sir Matthew Hale thought that the old Latin term "castigatio" used in this context meant only verbal admonition.  Blackstone thought that the "old law" allowed a husband to give a wife "moderate correction" within "reasonable bounds", as with servants and children.  However, he reported that this right had been doubted since the reign of Charles II (1660-1685), although "the lower rank of people" continued to use it.  He went on to note that "the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour".

This power of restraint - or imprisonment - was at issue in Re Cochrane (1840) 8 Dow PC 630, the last case which firmly asserted the old patriarchal conception of marriage.  The case concerned a wife who had left her husband, and whose husband brought her back forcibly to the marital home.  The judge, Coleridge J, found in favour of the husband, affirming "the general right of the husband to the controul [sic] and custody of his wife" and stating:
There can be no doubt of the general dominion which the law of England attributes to the husband over his wife....

For the happiness and honour of both parties it places the wife under the guardianship of the husband, and entitles him, for the sake of both, to protect her from the danger of unrestrained intercourse with the world, by enforcing cohabitation and a common residence.
This decision stood for most of the rest of the Victorian period.  Half a century later, however, the Court of Appeal heard the case of R v Jackson [1891] 1 QB 671.  In this case, the wife had left her husband for another man, and the husband kidnapped and confined her.  This time, the Court of Appeal found for the wife.  The Lord Chancellor, Lord Halsbury, said:
....I should think that such quaint and absurd dicta as are to be found in the books as to the right of a husband over his wife in the matter of personal chastisement are not now capable of being cited as authorities in this or any civilised country....

....I am prepared to base my judgment on this, that no English subject has a right to imprison, of his own motion, another English subject – whether his wife or anyone else....
Lord Esher MR doubted that a husband had ever had the right to beat his wife.  On the other hand, the judges' commitment to women's rights was limited.  Both Halsbury and Esher thought that a husband might have the right to restrain his wife if he caught her about to elope with, or even to meet, a lover.  And, just a few years previously, Sir James Hannen had spoken of marriage as being characterised by "protection on the part of the man, and submission on the part of the woman" (Durham v Durham (1885) 10 PD 80).

By the 1950s, the essentially patriarchal nature of marriage was being openly doubted, though not yet completely discarded.  Karminski J commented that "[i]t may be in the present times that submission on the part of the woman is no longer... an essential part of the contract" (In the Estate of Park [1954] P 89).

The final, grim remnant of the older conception of marriage was the doctrine that a husband could not be charged with raping his wife.  This rule of law was consigned to the history books in R v R [1992] 1 AC 599, although it had already been weakened by the Court of Appeal's decision in R v Kowalski (1988) 86 Cr App R 339, which related to other forms of sexual contact.

Additional Note (26 October 2012)

It is also worth quoting from R v Dibdin [1910] P 57 on the principle that no distinction exists between civil and religious marriage:
Marriage, in the view alike of the Courts of common law and of the Ecclesiastical Courts, is not a sacrament.... It is a contract of a peculiarly solemn kind, affecting the status of the parties. But it is one and the same thing whether the contract is made in church with religious vows superadded, or whether it is made in a Nonconformist chapel with religious ceremonies, or whether it is made before a consul abroad, or before a registrar, without any religious ceremonies.