r="0">
Newfoundland Family Law Study, Family Law in Newfoundland (1973).
46
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Family Law Reform Act 1977 section 64.
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A study of reform of the law relating to criminal conversation, enticement and harbouring has tentatively been added to the programme of the Law Reform Commission of British Columbia.
In Saskatchewan, the Law Reform Commission on 30 June 1976 recommended the abolition of the action for criminal conversation.47
(b) United States of America
(1) Criminal Conversation
In most jurisdictions in the United States, either spouse may sue the paramour of his or her spouse for criminal conversation. It is unnecessary to prove that the plaintiff has been deprived of sexual relations or any services of the other spouse or of any of the other spouse's affection for him or her. Recovery has been permitted even where the spouses were living apart at the relevant time.
Condonation will not bar an action but consent or connivance will afford a defence. The fact that the defendant was ignorant of the spouse's married status will not afford him or her a defence. Damages are awarded on the same general principles as in this country but punitive damages may be awarded in extreme cases.
(2) Alienation of Affections
In most States, either spouse may obtain damages from a person who, without justification and for an improper purpose, influences or advises the other spouse to leave
47
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Law Reform Commission of Saskatchewan, Third Annual Report 1976 p. 11 (1977).
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the home or to behave in a manner displaying an attitude of lack of affection towards the plaintiff spouse.
The defendant's conduct must have been intentionally directed towards influencing the spouse, but it is not essential that he or she be motivated by ill will towards the plaintiff.
(3) Abolition of Actions in Certain States
In several States, the actions for criminal conversation and alienation of affections were abolished in the 1930s. Since then they have ceased to exist in a number of other States, as a result either of judicial decision or statutory intervention.
(c) West Indies
(1) Trinidad and Tobago
In 1972, the right of action for damages for adultery was abolished.48
(2) Bermuda
In 1977, the action for criminal conversation and the right to claim damages for adultery were abolished, together with the actions for enticement and harbouring of a spouse.49
48
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Matrimonial Proceedings and Property Act 1972 section 19 (2) (b).
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49
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The Law Reform (Miscellaneous Provisions) Act 1977 section 4.
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CHAPTER 4 THE LAW IN SOUTH AFRICA, AUSTRALIA, NEW ZEALAND AND HONG KONG
(a) South Africa
(1) Damages for Adultery
An innocent spouse may bring an action for damages against a third person with whom his or her spouse has committed adultery. The action
(c) West Indies (Trinidad and Tobago, Bermuda)
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CHAPTER 4 THE LAW IN SOUTH AFRICA, AUSTRALIA, NEW ZEALAND AND HONG KONG
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42 |
(a) The Republic of South Africa
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42 |
CHAPTER 5 POLICY ARGUMENTS REGARDING REFORM OF THE LAW
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47 |
(a) Criminal Conversation
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47 |
(b) Enticement of a Spouse
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62 |
(c) Harbouring of a Spouse
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69 |
CHAPTER 6 SUMMARY OF RECOMMENDATIONS
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THE LAW REFORM COMMISSION
THE LAW RELATING TO CRIMINAL CONVERSATION AND THE ENTICEMENT AND HARBOURING OF A SPOUSE
CHAPTER 1 A THE PRESENT LAW
(a) Criminal Conversation
A man has a right of action for damages against a person who has had sexual relations with his wife. The action is an action for “criminal conversation”. The consent of the wife to the relations does not affect the entitlement to sue; and it is not necessary that the adulterous conduct should have resulted in the separation of the spouses. However, a husband who is already separated from his wife at the time of the adultery does not appear to be entitled to sue for damages for criminal conversation, unless the separation was brought about by the conduct of the defendant.
Only consent of or connivance by the husband will constitute a bar to the action where the spouses are living together. Other conduct by the husband, however disgraceful it may be in itself, will affect only the question of damages. The same is true in regard to condonation.
The fact that the plaintiff's wife has died while the action is pending or before it is brought does not deprive the plaintiff of a verdict in his favour, but the damages may be greatly reduced.
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It appears that ignorance of the fact that the plaintiff's spouse was married does not afford a good defence but that it may reduce the damages. (Lord v. Lord and Lambert [1900] P. 297)
In actions for criminal conversation, the marriage between the plaintiff and his spouse must be “strictly proved”, but, according to a decision1 of the Northern Ireland Court of Appeal in 1933, the evidence of the parties to the marriage may be sufficient, even though better proof may be available. The action does not survive the death of either plaintiff or defendant.2
The principles governing the award of damages are as follows:
1.
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Since it would appear that the action is based on the case rather than on trespass, mere proof of adultery does not entitle the husband to damages: actual loss or injury must be shown.
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2.
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Punitive or exemplary damages may not be awarded. “This is not to say that there may not be exceptional and particular cases where the defendant's conduct has been calculated by him to make a profit for himself which may well exceed any compensation likely to be payable to the plaintiff. In such rare and exceptional cases other considerations may apply”. Maher v. Collins [1975] I.R. 232 at 238 (Sup. Ct.)
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1
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McCarthy v. Hastings [1933] N.I. 100.
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2
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Civil Liability Act 1961 sections 6, 7(1) and 8(1).
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3.
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In awarding compensatory damages, regard should be had to (a) the actual value of the wife to the husband and (b) the need properly to compensate the husband for the injury to his feelings, the blow to his marital honour and the hurt to his matrimonial and family life.
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4.
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The value of the wife may be considered from two points of view: (a) the pecuniary aspect “in relation to which her future and her assistance in her husband's business and such allied matters are relevant”; and (b) the consortium aspect –“in relation to which the wife's general qualities as a wife and mother and her conduct and general character are relevant”. Maher v. Collins supra at 237.
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5.
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As respects damages for the injured feelings of the husband, “moderation rather than undue severity should be the principle. The conduct of the defendant can be of the greatest importance. Any feature of treachery, any grossness of betrayal, any wantonness of insult may deeply add to the husband's sense of injury and wrong and, therefore, call for a larger award – not as exemplary damages, but as appropriate compensation”. Maher v. Collins supra at 238.
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6.
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“The character and conduct of the husband is as fully in issue as the character and conduct of the wife”. Maher v. Collins supra at 238.
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7.
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Authorities are divided on the question whether the means of the defendant are relevant to the amount of damages to be awarded and, if so, whether evidence of the particular means of the defendant ought to be admitted. In Butterworth
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v. Butterworth3, Mr Justice McCardie sought to rationalise the authorities by holding that the means of the defendant were not, as such, material but that the way in which the defendant's wealth was employed might
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“have the most direct bearing on the question of damages. First, because it may assist in ascertaining the value of the wife4, and, secondly, because the mode in which the adulterer may employ his fortune in seducing the wife may greatly accentuate the outrage to the husband's feelings and the blow to his honour and family pride. The mode in which a co-respondent has used his wealth forms part of his conduct, and that conduct may aggravate the injury to the husband”.5
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3
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[1920] P. 126; also referred to infra pp. 11, 12.
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4
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Since, apparently, if it took the use of a fortune to seduce a wife, it would indicate that she was not likely to be won and would therefore indicate her greater value to a husband, as compared with a wife who yielded to the first suggestion or temptation: cf. Forster v. Forster (1864) 33 L.J.C.P. 150. In Butterworth v. Butterworth supra at p. 148 McCardie J., referring to Sir Cresswell Cresswell's direction to the jury in Forster v. Forster, stated: “I think he might correctly have added that the use of a fortune may in many cases accentuate the outrage on a husband's feelings.
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5
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Butterworth v. Butterworth, supra, at 148. McCardie J. explained (id.) the apparently different approaches favoured in earlier decisions as follows: “I feel that they meant to say only that when the proper amount of damages is reached it should not be diminished or increased by the poverty or the wealth of the adulterer”.
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According to English decisions on damages for adultery with the wife only general evidence as to the means of the defendant might be given and the Court could not receive detailed evidence of the means or property of the defendant; but this was doubtful.
The concept of abuse of wealth by the defendant was criticised by Diplock L.J. in Pritchard v. Pritchard and Sims [1967] P. 195 at 212–213, in a passage which merits extended quotation in the context of the “social norms” in England at the time:
“The measure of .... compensation for injury to the husband's feelings and pride must .... take account of changing social norms. The test must be his rational resentment, not his mere idiosyncratic ire, and the factors to be taken into account in mitigation or aggravation are those which would affect the feelings of a reasonable man with an unfaithful wife in the social conditions of today. Such reasonable cuckold of the common law may be divorced from reality as well as from his wife, but the concept is needed so long as parliament preserves a cause of action which, in so far as it extends beyond proven pecuniary loss, I confess I find 'repugnant to modern and sensible ideas.'
In the 18th and early 19th centuries, when the gulf between the classes was so wide, it may have been plausible to hold that a poor man's resentment was justifiably increased if the adulterer used his superior wealth or station to deprive the poor man of his chattel-wife, and so to award as compensatory damages which were in truth exemplary. When, however, McCardie J. in Butterworth v. Butterworth in 1920 accepted the use of wealth or station by an adulterer as still being a factor in aggravation of damages, he was taking his psychology from the Victorian novelette and not from life in the 1920s, and social norms have not stood still since then. I find it impossible to accept that, in these egalitarian and materialistic days, the feelings
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and pride of a reasonable man are more affronted if his wife commits adultery with an opulent baronet rather than with an impoverished dustman, a young Adonis rather than an elderly Caliban. The lower the material and physical attractions of his supplanter, the more wounding the comparison, and the greater the blow to his own self-esteem.”
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The question whether a wife has a right of action for criminal conversation against a woman who commits adultery with her husband has never come up for judicial decision in Ireland. If it did, it would, of course, raise Constitutional issues. The view that no action lies is founded on the argument that historically the action has been based on the “servile” position of the wife relative to her husband. Moreover, the tendency in English decisions relating to negligently caused loss of consortium and to harbouring of a spouse has been to deny a right of action to the wife on the basis that these actions are anomalous and that it is better to confine the anomaly as far as possible rather than extend it further. As against this, a strong argument may be made in favour of the view that the wife has a right of action for criminal conversation.
First, it may be said that the former concept of the action, in which the wife was supposedly akin to a chattel of her husband, has been replaced by the view that the action protects the stability of the marriage relationship.6.This view clearly involves a right of action for each spouse.
6
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Cf. Kelly, “The case for Retention of Causes of Action for Intentional Interference with the Marital Relationship” 48 Notre Dame Lawyer 426 at 431 (1972).
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Second, the legal position of married women has changed radically from the time when the action for criminal conversation originated. Married women have now full contractual capacity7, the same liability in tort as their husbands8, equal succession rights9, equal rights to guardianship and custody in respect of their children10 and equal maintenance obligations11. A married woman may sue, and be sued by, her husband as if she were unmarried12. Also, since the Juries Act 1976 (enacted following the decision of the Supreme Court in de Burca v. A.G. [1976] I.R. 38) women are liable for jury service in the same way as men. To contend that the action for criminal conversation has remained frozen in its historical condition in the face of these statutory and Constitutional developments is unconvincing.
7
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Married Women's Status Act 1957 section 2(1).
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10
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Guardianship of Infants Act 1964 section 6(1). See alsoB. v. B. [1975] I.R. 54 at 61 (Sup. Ct.) where Walsh J. states that
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“[i]n [giving to both parents of an infant equal rights in guardianship matters, the 1964 Act] provided a statutory expression of the rights already guaranteed by the Constitution.....”
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11
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Family Law (Maintenance of Spouses and Children) Act 1976, section 5.
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12
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Married Women's Status Act 1957 section 2(2).
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Third, Article 40 of the Constitution may be considered as requiring that no sex discrimination exist in relation to the action. In de Burca v. A.G. (at p. 72) Mr Justice Walsh states, in relation to Article 40.1 of the Constitution:
“To be of either sex, without more, is not per se to have a social function within the meaning of Article 40 of the Constitution. To be an architect or a doctor, for example, is to have a social function, but the function does not depend upon the sex of the person exercising the profession. Clearly some social functions must necessarily depend upon sex, such as motherhood or fatherhood. In the proper context, due recognition may also be given by the law to the fact that certain social functions are more usually performed by one sex rather than by the other. The essential test in each such case is the function and not the sex of the functionary”.
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The question, therefore, arises as to whether married women as such are performing a social function, and, if so, whether the difference of social function between husband and wife, respectively, would justify the discrimination between them that refusal to recognise the wife's claim would entail. The better view appears to be that such discrimination would not withstand Constitutional challenge.13
13
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It should be said that differences between the sexes do exist in relation to criminal conversation, since adultery by a wife may lead to her giving birth to an illegitimate child, which may in turn cause further disruption in the relations between husband and wife whereas adultery by the husband does not have this immediate consequence, though, of course, the consequences for the mother of a child born of his adultery may be very severe. The emphasis on the first aspect in former times may have been linked to questions of succession to property. The argument has been used to justify discrimination between the sexes under the Indian Divorce Act: see H. Seervai, Constitutional Law of India vol. 1, 292 (2nd ed. 1975).
It is perhaps worthy of note that if the Equal Rights Amendment becomes part of the law in the United States, it “would prohibit enforcement of the sex-based
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Fourth, it may be argued that the English cases on negligence causing loss of consortium and on harbouring, in which the right of action of married women was rejected, would not afford very strong support for the view that the same rules apply in relation to criminal conversation. It should be noted that criminal conversation, enticement and harbouring are all torts arising from the intentional interference with the marital relationship. When the issue whether a married woman could sue for enticement came before the English Courts, they held that she could14, and, in Best v. Fox15, which held that no action lay on behalf of a married woman for negligently inflicted loss of consortium, Lord Porter stressed16 the malicious nature of the defendant's conduct in enticement and Lord Goddard noted that enticement actions depend
13
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definitions of conjugal function, on which the discriminatory consortium laws are based. Courts would not be able to assume for any purpose that women had a legal obligation to do housework, or provide affection and companionship, or be available for sexual relations, unless men owed their wives exactly the same duties”. Brown, Emerson and Freedman, “The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women” 80 Yale Law Journal 871 at 944 (1971). For further discussion of the Equal Rights Amendment, see generally Binchy, “The American Revolution in Family Law” 27 N.I. L.Q. 371 at 377–379 (1976). For discussion of constitutional developments relating to sex discrimination in respect of negligently inflicted loss of consortium, see L. Kanowitz, Women and the Law: The Unfinished Revolution 160–166 (1969).
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14
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Gray v. Gee (1923) 39 Times L.R. 429 (Darling J., addressing Special Jury), Place v. Searle [1932] 2 K.B. 497 (C.A., obiter statements of Scrutton and Slesser L.JJ.), Newton v. Hardy (1933) 49 Times L.R. 522 (K.B. Div.).
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15
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1952] A.C. 716 and [1952] 2 All E.R. 394 (H.L.). For criticism of this decision, see McKay, Comment: “Is a Wife Entitled to Damages for Loss of Consortium?” 64 Dickinson Law Review 57 at 62–63 (1959).
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“on the well established legal principle that the violation of a legal right committed knowingly is a cause of action”,17
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and on the basis that “[t]here has been a conscious and wilful invasion of [the wife's] right”.18
Best v. Fox may, therefore, scarcely be regarded as a persuasive authority against the wife's right of action for criminal conversation, since it conceded the propriety of the general principle that, where there is intentional interference with the consortium (as in enticement and criminal conversation), the injured spouse should have a right of action.
(b) Enticement of a Spouse
It is an actionable tort wrongfully to entice one spouse away from another. The tort is wholly independent of sexually immoral factors: adultery is not an ingredient and, conversely, adulterous conduct might not give rise to an action for enticement at all (as where the spouses continue to cohabit).
The inducement to leave must be something stronger than mere solicited advice or sexual attraction, but it is not necessary that the will of the plaintiff's spouse should have been overborne by the stronger will of the defendant.
18
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Id. at 730. Cf. Anon., “The Wife's Right of Action for Loss of Consortium” 26 Harvard Law Review 74 at 75 (1912). For a convincing argument to the effect that the right to recover for negligently caused loss of consortium can be supported by a stronger moral claim than that relating to intentional interference, see Anon., “Judicial Treatment of Negligent Invasion of Consortium” 61 Columbia Law Review 1341 at 1354 (1961).
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The parents of a spouse have no more right to entice him or her away than a complete stranger, although it would appear that circumstances may be recognised in relation to parents as excusing conduct that would amount to enticement in the case of similar conduct by a stranger.
For a plaintiff to succeed in an action for enticement, it is not necessary to establish an evil motive on the part of the defendant; but where the defendant can establish that he or she acted from “motives of humanity”, as where the plaintiff maltreats his spouse so that she is forced to leave his house through fear of bodily injury, the defendant will not be liable.
There is no clear authority on whether a wife has a right to sue for enticement. In England in Lynch v. Knight19 the House of Lords was divided on the issue, Lord Campbell L.C. considering that the wife had a right of action and Lord Wensleydale taking the contrary view. In Butterworth v. Butterworth20, Mr Justice McCardie considered it “doubtful” whether a wife had the right to sue for enticement or harbouring, believing that this was on account of the fact that the rights of a husband with regard to the person and society of his wife “were different to and far greater than” the rights of a wife with respect to the society of her husband – following the opinion of Lord Wensleydale in Lynch v. Knight, supra. McCardie J. noted that in many jurisdictions in the United States a
19
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(1861) 9 H.L.C. 577, 11 E.R. 854.
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20
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[1920] P. 126 (McCardie J.), referred to supra pp. 4–6 and fns 3–5.
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different view prevailed and that actions by women for enticement and alienation of affections were “prominent features” of the law reports of those States. He did not, however, address himself to the question whether, in the light of the substantial emancipation of married women during the period since 1861, the argument that impressed Lord Wensleydale should nevertheless continue to carry weight. This is surprising having regard to McCardie J.'s judgment twelve years later in Place v. Searle21.
In 1923, in Gray v. Gee22, after an extended discussion of the question, Mr Justice Darling held that a wife could sue for enticement23 and in Place v. Searle, the same view was
21
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[1932] 2 K.B. 497, referred to supra p. 9 fn. 14.
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22
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(1923) 39 T.L.R. 429, referred to supra p. 9 fn. 14.
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23
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The relevant passage from the report of Darling J.'s judgment is worth quoting:
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“In this country a woman was never the chattel of her husband. He had potestas over her and his children, but potestas and proprietas were very different things. He (his Lordship) had come to the conclusion that there was no distinction to be drawn here to the effect that the husband could bring the action because his wife was his property and that the wife could not because her husband was not her property. If a man was allowed to bring such an action, why should not a woman? He could see no reason. A woman might not lose quite as much as her husband, but if another woman enticed the husband away she lost far more than necessities and far more than money could replace. This form of action had been allowed in the United States and in Canada, and although those decisions were not binding upon a Judge in this country, they laid down what was the old law of England. He thought it was entirely consistent with the principles of our common law, and he thought the reason why such an action had never been brought before was that there had been difficulties of procedure. These had now been swept away by the Married Women's Property Act, 1882. He was of opinion that the rights of the two parties were the same. The difficulty had been, not that there was not the right, but that the remedy had not been devised. The law had devised that remedy by the Act which gave a married woman the right to sue in her own name for her own benefit.”
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clearly expressed obiter by Scrutton24 and Slesser L.JJ. In Newton v. Hardy25, in 1933, Mr Justice Swift, after referring to these authorities26, held that a wife could sue for enticement, the Judge considering that, if he had not formed that view himself, he would have held it to be the law because of the dicta in Place v. Searle, which he would have felt bound to follow. Mr Justice Swift added that
“It was true that in Place v. Searle a husband was suing for the loss of the consortium of his wife, and that in such a case different arguments could be advanced from those available where a wife was the plaintiff, but it could not now be thought that the right to sue for damages for the loss of consortium was limited to the husband. The right to consortium was a mutual right of husband and wife and if anyone violated it either husband or wife could sue for damages for that wrong,”
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In Best v. Fox (referred to supra p. 9 fn. 15) Lord Goddard, approving of Place v. Searle, stated obiter:
“A wife is entitled to enjoy the society, comfort and protection of her husband and to be maintained by him, and if another entices him from her so that she is bereft of those benefits, she is as much entitled to claim damages as is a husband whose wife is for any reason, save humanity, abducted or persuaded to leave his home”
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.
24
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“It seems to be clear that at the present day a husband has a right to the consortium of his wife, and the wife to the consortium of her husband, and that each has a cause of action against a third party who, without justification, destroys that consortium”: id. at 512.
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25
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(1933) 49 Times L.R. 522 (K.B. Div.), referred to supra p. 9 fn. 14.
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26
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And to the decision of the High Court of Australia in Wright v. Cedzich (1930) 43 C.L.R. 493, holding that no action lay on behalf of the wife.
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It is considered that, if the issue came before an Irish Court today, the right of action on behalf of the wife would be fully recognised. Apart from the line of English decisions in favour of recognition, the factors already mentioned above in relation to criminal conversation would be likely to be strongly persuasive. Most important of these are the changed legal position of women and the recent developments in Constitutional law relating to sex discrimination. (See also infra in regard to harbouring.)
The action for enticement does not survive the death of either plaintiff or defendant.27
(c) Harbouring of a Spouse
It is an actionable tort for a person to harbour a man's wife28 after notice that she has left him without his consent. Where the defendant acts from principles of humanity, as for instance to protect the wife from ill-treatment by the husband, no action lies. If the wife
27
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Civil Liability Act 1961 sections 6, 7(1) and 8(1).
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28
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After the decision in R. v. Jackson 1891 1 Q.B. 671 (C.A.), which held that a husband was not entitled physically to force his wife to live with him, the view was expressed that the action for harbouring had become obsolete: N. Geary, The Law of Marriage and Family Relations 167 (1892), but this appears to have been premature.Cf. Salmond on the Law of Torts 470 fn. 13: “Quaere whether an action for harbouring would not have lain against the relatives in this case” (15th ed. (1969) by R.F.V. Heuston). (For an analysis of Jackson, see Manson “Marital Authority” (1891) 7 L.Q.R. 244.
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misleads the defendant into believing that she requires sanctuary from ill-treatment, the action will not succeed. Adultery is not an ingredient of the action.
No decision has recognised the right of a wife to sue for the harbouring of her husband. In the English case of Winchester v. Fleming, this issue came squarely before the Court, and Mr Justice Devlin held that a wife did not have such a right, on the basis that “where the choice lies between leaving a decaying form of action in the shape in which it was originally constructed and adding on up-to-date extensions, the Court may refuse to embark on the task of modernization”.29
The question arises as to whether an Irish Court would follow Winchester v. Fleming or instead adopt another approach. Whilst the matter is not free from doubt, it is suggested that it is more likely that an Irish Court would now recognise that a wife has the right to sue for the harbouring of her husband in the same way as he has a right to sue if she is harboured. It is also suggested that an Irish Court would take this view having regard in particular to the legal developments relating to the equality of the sexes and to the development of Constitutional law in recent times. (Cf. p. 14 supra in regard to enticement.)
The action for harbouring does not survive the death of either plaintiff or defendant.30
29
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1958 2 Q.B. 159 at 265, 266.
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30
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Civil Liability Act 1961 sections 6, 7(1) and 8(1).
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NORTHERN IRELAND
(i) Criminal Conversation
Until 1939, the position in Northern Ireland was the same as in this jurisdiction: a husband had a right to sue his wife's paramour for damages in an action for criminal conversation. The Matrimonial Causes Act (Northern Ireland) 1939 by section 18 replaced this action by an action for damages for adultery on the lines of the 1857 legislation in England, which abolished the action for criminal conversation but introduced in its place the action for adultery with the wife. (See sections 49 and 33 of the Matrimonial Causes Act 1857 and pp. 20, 21 infra.
The Office of Law Reform in Northern Ireland stated in 1977 that it was understood that claims for adultery were “rare” and that the damages awarded were “of comparatively small amounts”. In 1975 when there were nearly five hundred divorces there were four claims for damages and only one of these was successful, £ 250 being awarded31. (A claim for adultery could be included in a divorce petition or made independently.) The Office, in its Consultative Document on Family Law, set out the reasons for abolition of the action for adultery in England and Scotland. Since this summary of reasons does not derive directly from the Reports of the English and Scottish Law Commissions, it merits quotation in full:
31
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Office of Law Reform, The Reform of Family Law in Northern Ireland: A Consultative Document para. 46 (Belfast 1977).
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(a)“The action was based on an outmoded view of marriage and implied that a husband had a proprietary right to his wife, even though in recent times less emphasis had been placed on this aspect in assessing damages. In so far as the action purported to compensate a husband for his wounded feelings, there seemed little justification for its continuance. A wife had no corresponding right of action against a woman with whom her husband committed adultery.
(b) There seemed likely to be relatively few cases where a husband suffered actual loss due to the co-respondent's adultery with his wife. This was borne out by the small number of cases in which a claim was made.
(c) Damages awarded by the courts in the majority of cases were small. This suggested that there was no serious problem for which they afforded a remedy.
(d) The existence of the action was thought to lend itself to blackmail and the possibility of collusion between husband and wife – especially where the co-respondent was a man of means. It was found that in England most awards over £1,000 were agreed figures.
(e) Since the damages awarded depended on the value of the wife there was a danger of the unedifying spectacle of the wife belittling herself (to reduce damages against a co-respondent she intended to marry) and the husband extolling her virtues (to increase his damages) while at the same time normally using divorce proceedings to reject her.
(f) Courts were reluctant to burden an impecunious co-respondent with damages that might take years to pay: they therefore tended to award damages only where the co-respondent was a man of means. This meant that, in effect, there were two standards – if the damages truly compensated the husband for his loss he should have been entitled to them regardless of the means of the co-respondent.
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(g) It was sometimes argued that a wealthy co-respondent should be made to pay. This was taking a punitive view of the claim which was rejected by the courts – damages were compensatory and ought to have been the same against a poor man as against a rich one (though of course the chances of actually recovering them from a rich man would have been better).”– para. 46.
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The Office of Law Reform in its Consultative Document sought views about the desirability of abolishing the action.
Since publication of the Consultative Document the Matrimonial Causes (Northern Ireland) Order 1978 has been made. This Order provides for the introduction in Northern Ireland of a divorce jurisdiction broadly similar to that in England and Wales. Prior to the Order, the petitioner had to show that the other spouse had been guilty of a matrimonial offence such as adultery, cruelty or desertion. The 1978 Order provides that the only ground of divorce shall be that the marriage has broken down irretrievably; and this may be proved by establishing one or more of the facts set out in Article 3 of the Order, including the adultery of the respondent since the date of the marriage. This means that adultery will, in effect, be a ground for divorce without the necessity to show that the petitioner finds it intolerable on that account to live with the respondent. Here the Order follows Scots and not the English law. The Order has two further similarities with the law of Scotland. First, there is no requirement for solicitors in divorce cases to certify that they have discussed the possibility of reconciliation. It seems that a provision to this effect in English law has proved to be of little value. Second, the Court in Northern Ireland now has jurisdiction to dismiss a petition for divorce
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based on the adultery of the respondent, if the respondent proves that the adultery was committed with the connivance of the petitioner. Article 57 of the 1978 Order abolishes the right to claim damages for adultery.
(ii) Enticement and Harbouring
The law in relation to these torts would appear to be substantially similar to that in this jurisdiction. The Office of Law Reform in its Consultative Document stated that
“[t]he reasons for abolition are substantially the same as those applying to the action for adultery. The actions assume that the wife is the husband's property (the action for enticement is usually for the enticement of a wife; that for harbouring can only be in respect of a wife); they open the possibility of blackmail; they involve the public display and exacerbation of domestic quarrels; and they can only have a disastrous effect on the children (if any) of the marriage. The actions have been the subject of a degree of legislative disapproval in that they are excluded from surviving the death of either party and legal aid is withheld. They have been the subject of judicial disapproval in that the courts have consistently refused to extend their scope beyond the limits set by precedent (e.g. to allow a wife to bring an action for the harbouring of her husband). It has also been pointed out that the basis of the action for harbouring was the economic process by which a wife refused food and shelter elsewhere would be compelled to return to her husband, and that this is no longer valid in an age when society is organised on the basis that everyone is in the last resort to be supported by the state.”
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The Office stated that it was believed that these actions were comparatively rare in Northern Ireland and it invited views about their abolition. The actions were abolished by Article 58 of the Matrimonial Causes (Northern Ireland) Order 1978.
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CHAPTER 2 THE LAW IN OTHER EUROPEAN LEGAL SYSTEMS
(a) England
The common law action for criminal conversation was abolished in England in 1857. In its place a husband was given the right to claim damages against a person who committed adultery with his wife. Proceedings could be taken either in conjunction with a petition for divorce or judicial separation (which was substituted for divorce a mensa et thoro) or without making such a petition.32 The claim for damages was generally tried on the same principles as the old action for criminal conversation, although there were some differences. Thus, for example, condonation was held to disentitle a husband from proceeding for damages. Moreover, the legislation of 1857 created a new power for the Court to direct in what manner the damages were to be applied; and the Court might direct them to be settled for the benefit of the children (if any) or even of the guilty wife.
The English Law Commission Working Paper No. 9
In 1967, the Law Commission examined the action for damages for adultery in a Working Paper, entitled Matrimonial and Related Proceedings – Financial Relief33. The Commission concluded their analysis of the subject by stating that
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Matrimonial Causes Act 1857 sections 33 and 49.
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33
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Working Paper No. 9 (1967).
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“we are inclined to the view that damages for adultery (and the action for enticement) should be abolished altogether and not replaced by any financial liability (other than for costs). However, we feel that this is not a question on which we at this stage ought to give a firm opinion. It is a matter for the moral judgment of society generally, which may feel that in outrageous cases a rich seducer should be made to pay. We shall welcome comments from the readers of this paper, both lay and legal.”
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The English Law Commission Working Paper No. 19
In 1968, the Law Commission returned briefly to the subject. In its Working Paper No. 19, the Commission reported that the comments so far received on its provisional proposals in Working Paper No. 9 suggested that public opinion would favour abolition of the action for enticement and of any claim for damages for adultery not coupled with a petition for divorce or judicial separation, but that there would be objection to a total abolition of claims for damages for adultery. The Commission added: “Public opinion, it is said, will demand that damages be recoverable in divorce proceedings from the wealthy seducer of a poor man's wife”.34 The Commission stated that its preference was still for total abolition of both actions, but that it was awaiting further views on the subject. In the meantime, it had “no hesitation” in proposing the total abolition of the action for enticement.
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Working Paper No. 19, The Action for Loss of Services, Loss of Consortium, Seduction and Enticement para. 91 (1968).
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The English Law Commission Report on Financial Provision in Matrimonial Cases (1969)
The Law Commission concluded its treatment of the subject the following year in its Report on Financial Provision in Matrimonial Cases.35 It referred to Working Paper No. 9 in which
“we set out the arguments for and against the retention of th[e] remedy [of damages] and made it clear that we were of the opinion that it should be abolished. We recognised, however, that this was essentially a social question on which opinion was likely to be divided.”
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The Report stated that the Commission's consultations had “confirmed that this is indeed so”. It added:
“None of the arguments advanced in the course of the consultations has caused us to resile from our view which still is that damages for adultery should be abolished. But, as already stressed, this is essentially a social question to which we are not qualified to give a final answer.”
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The Commission stated that consultation on the suggestion in its previous Working Paper that the actions for enticement and harbouring of a spouse should be abolished had made it “clear that this suggestion is generally accepted.”
The Law Reform (Miscellaneous Provisions) Act 1970
Legislation followed one year after the publication of the Law Commission's Report with the passage of the Law Reform (Miscellaneous Provisions) Act 1970 which in section 4 abolished the right to claim damages for adultery. That
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Law Com. No. 25 (1969).
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legislation was introduced by a Private Member, the Government's attitude to it being described by the Solicitor-General as “one of benevolent neutrality.”
The Bill as introduced proposed the abolition simpliciter of the right to claim damages for adultery, and actions for enticement, seduction and harbouring of a spouse or child. There was, however, extended debate on a proposal by Mr Leo Abse M.P. that, instead of simply abolishing the action for adultery, a new right of action should be available, for the benefit of any children of the marriage, to obtain damages against a person (male or female) in proceedings for divorce or judicial separation, where that person had committed adultery with either spouse which had “caused or contributed to the breakdown of the marriage” and where the children were likely to suffer financial hardship unless an order were made. The type of case envisaged by Mr Abse was one where a rich man or woman, through a callous display of wealth, might have seduced a married person, thereby leading to the breakdown of that person's marriage, with consequent financial hardship to the children.
The proposal was opposed primarily on the ground that, in the light of the recent divorce legislation36, it would be anomalous to retain such strongly “punitive” considerations of fault in the approach of the law to marriage breakdown. Mr Abse's proposed amendment, although agreed to by the Special Committee, was defeated at the Report Stage in the House of Commons.
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The Divorce Reform Act 1969 replaced the fault-based grounds for divorce of adultery, cruelty and desertion by a single new ground of irretrievable breakdown of marriage.
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(b) Scotland
(a) Adultery
Until January 1st 1977, the position in Scotland was that a husband could sue a person for damages for committing adultery with his wife. It was not necessary that the husband should have lost the affections or society of his wife, this being a question of damages only. Moreover, condonation on his part would not disentitle him to sue.
The question whether absence of knowledge on the part of the defendant that the woman with whom he had sexual relations was married would afford him a good defence never arose directly for decision, but the view of the commentators was that it was probably necessary to establish that knowledge.
Whilst consent by the plaintiff to his wife's having sexual relations with the defendant barred an action, the fact that he had been guilty of adultery or cruelty did not disentitle him to sue.
Although no reported decision specifically recognised the right of a wife to sue for damages, the view had been expressed that “on principle there would seem to be no reason why she should not [have] do[ne] so”.37
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E. Clive and J. Wilson, The Law of Husband and Wife, 277. See also the Scottish Law Commission Memorandum No. 18, Liability of a Paramour in Damages for Adultery and Enticement of a Spouse paras. 2.3, 2.26, 2.27, D. Walker, Principles of Scottish Private Law, 1111–1112, D. Walker, The Law of Delict in Scotland vol. 2, 718–719.
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Damages were awarded on the same general principles as apply in this country, although awards “.... tend[ed] to be low”.38
(b) Enticement
The question whether a spouse has a right of action for enticement is still an open one. The authorities which would appear to support its existence have been described in a recent work as being “scanty, and either old or imported”.39
Scottish Law Commission Memorandum No. 18 (1974)
The Scottish Law Commission examined the law relating to damages for adultery and enticement in its Memorandum No. 18 in 1974. After a review of the existing law, the Commission proceeded to discuss the possible changes to the law relating to damages for adultery.
The first question considered by the Commission was whether the law should be clarified to ensure that a wife should have a right of action for damages against her husband's paramour. It stated that
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E. Clive and J. Wilson supra, 279.
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39
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E. Clive and J. Wilson supra, 281. See further D. Walker, Principles of Scottish Private Law supra 1111, and D. Walker, The Law of Delict in Scotland supra 714–716, who does not express similar doubts about the existence of the right of action; and T.B. Smith, A Short Commentary on the Law of Scotland, 724, who says that “there is little authority on the point in Scotland ....” (See also Scottish Law Law Commission Memorandum No. 18 paras. 3.1–3.3.)
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“[i]t has been objected that this might increase the number of cases coming before the courts but, if the principle on which the husband's right of action is based is accepted, we consider that any such increase ought also be accepted. The present tendency of legislation is to treat spouses, as far as possible, upon an equal footing and there would appear to be a strong case for removing from our law this remnant of discrimination between husband and wife. We endorse, therefore, the conclusion of the Morton Commission”. (para. 2.27)
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The second question considered by the Commission was whether the right to sue a paramour should be extended to the children of the marriage. The Commission opposed such an extension on the ground that, if such a right were conceded, it would presumably be the duty of the tutors in every case to initiate proceedings on behalf of the children, and that children “should not be exposed to the risk of learning in the future that their education had been facilitated by their parent's adultery”.
The third question considered by the Commission was whether it should be necessary for the pursuer to establish that the co-defender knew that the person with whom he or she had had sexual relations was married. The Commission adopted the view that, in conformity with the delictual basis of the claim, the onus of proof should lie on the pursuer. This view was also favoured by the Morton Commission.40
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The Royal Commission on Marriage and Divorce (Cmd. 9678 (1956))), so called after its Chairman, Baron Morton of Henryton, a Lord of Appeal in Ordinary – paras 463, 464. The Scottish Law Commission discussed the matter at para. 2.20 of Memorandum No. 18 (1974). (See infra p. 60 fn. 69.)
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The fourth question considered by the Commission was whether a claim for damages for adultery should be competent in actions of judicial separation founded on adultery, as well as in actions of divorce. The Commission was of the view that “[t]here would appear to be no justification for making a distinction in this respect....”
The fifth question considered by the Commission was whether the Court in an action for damages for adultery should be given discretion in certain cases to reduce damages, having regard to the conduct of the pursuer and the means and circumstances of the co-defender. The Commission did not express a preference on the matter, stating that “[s]uch a proposal will require careful consideration as it introduces a new principle”.
The sixth question considered by the Commission was whether the basis of the entitlement to damages should be changed so as to relate the quantum of recovery to the quantum of causal responsibility for the breakdown of the marriage. It appeared to the Commission to be “out of line with current notions of responsibility” to affix full responsibility on the paramour when the guilty spouse had participated with full consent in the adulterous relationship.
The seventh question considered by the Commission was whether the right to claim damages for adultery should be restricted to where divorce proceedings were also being taken. The Commission stated:
“We concede that it is unfortunate that, after the conclusion of an action of divorce or of judicial separation, responsibility for the breakdown of a marriage may have to be re-examined. We consider, however, that if the right to claim damages is to subsist, any procedural limitations affecting the type of process in which they may be claimed would be inappropriate. If, as we think.... jurisdiction
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in respect of conclusions for damages or expenses should follow the normal rules for personal actions, the limitation of the right to claim damages or expenses to a subsidiary conclusion in an action of divorce or separation would present co-defenders with the temptation to place themselves temporarily outwith the jurisdiction of the court. There would also be a contrast between the liability in practice of a co-defender subject to the jurisdiction of the Scottish courts in personal actions and a co-defender not subject to that jurisdiction.” (para. 2.33)
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The Commission considered that there would be no real danger of pursuers deliberately choosing to raise a separate action for damages with a view to adding to the co-defender's expenses, particularly if the Court were to be given the discretion that the Commission had recommended to reduce the amount of damages having regard inter alia to the conduct of the pursuer.
The eighth question considered by the Commission was whether the jurisdiction of the Court should be changed from its delictual base to that of a matrimonial proceeding. The “tentative conclusion” of the Commission was that it should not, on the ground that such claims were “essentially of a delictual nature and should follow the usual heads of jurisdiction in delictual actions”.
The ninth and final question considered by the Commission was the most important one of whether the action for damages for adultery should be abolished. The Commission's discussion of this issue merits extended quotation:
“Whatever justifications have been offered in the past for the husband's right to claim damages from the person who has committed adultery with his wife, the question remains whether this right of action should be retained in our law. It might be said, on the one hand, that a conjectural historical basis of the action, namely the recognition of a species of right of property enjoyed by the husband in his wife's body, is out of accord with current social attitudes. It
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might also be asked whether there is any evidence to suggest that the existence of such a right of action is at the present time a deterrent to the commission of acts of adultery and whether any social ends of value would be lost by the abolition of the action. On the other hand, it might be said that in addition to its moral basis the right of action does have a practical justification, that of recouping for a wronged husband the expenses he has incurred in the action of divorce and, perhaps more importantly, that of providing a solatium to him for the injury which he has sustained. It is arguable that, while in the ordinary case the wronged spouse would not wish to seek such a remedy, there are cases where the conduct of the paramour has been so blatantly offensive, or so cruel, or so underhand that the injured person should be entitled to damages. One example is where the paramour has abused a position of authority. In such cases, it may be argued, the absence of a legal remedy might lead to anti-social acts of revenge. There are also situations41.... where the conduct of the person who has had sexual intercourse with the pursuer's wife verges upon the commission of indecent assault or even rape. If the defender is worthwhile suing, should he not pay damages to the husband and a solatium for the injury to his feelings? It is arguable, however, that in cases verging on indecent assault or rape the real injury is suffered by the woman, to whom a right of action for solatium would clearly be open, and that it should be for her alone to decide whether to claim damages. It is also undeniable that there are some cases where actions of damages for adultery are brought for inappropriate reasons, out of spite or hatred, or where the action is brought or threatened to put pressure on the co-defender to make a financial settlement”. (para. 2.35)
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The Commission did not in Memorandum No. 18 take a position on the issue whether the action should be abolished, stating that
“[t]o enable us to decide whether this right of action should remain or be abolished in Scotland the views of readers of this Memorandum on these and other relevant arguments would be welcomed”.
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The Commission referred to Black v. Duncan 1924 S.C. 738.
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The Commission proceeded to examine in some detail whether the existing law relating to the liability of the co-defender for the expenses in divorce proceedings should be amended or abolished. In this regard, the Commission discussed largely the same questions42 as in respect of the damages for adultery action. Again, the Commission came to no final conclusion on the matter, seeking at that stage the comments of readers on the issue.
On the question of whether the right to sue for damages for enticement should be abolished, the Commission took a clear position. It stated
“Actions for damages for the enticement of a spouse, it is thought, are an anachronism in the present social climate and fulfil no useful purpose. They are anachronistic because they imply that one spouse has a species of proprietary right to the society of the other. They fulfil no useful purpose both because the remote chance that they may be instituted is not a serious deterrent to a third party who wishes to persuade one spouse to leave the other and because success in the action is more likely to persuade the enticed spouse to remain apart than to rejoin the other. The effect of such actions is likely to be an increase in the bitterness between those involved. They are objectionable on that account and subsidiarly because there is a danger of such actions being initiated for reasons of mere spite. In our view, therefore, it should be made clear by legislation that actions for damages for the enticement of a spouse are incompetent in Scotland.” (para. 3.4)
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E.g. whether liability should be extended to female co-defenders, the effect of ignorance of the fact that the defender was married, the extension of the power to ordain the payment of expenses by a co-defender in actions of judicial separation based on adultery, and the possible abolition of the right to claim the expenses of the action of divorce from the co-defender subsequent to the divorce proceedings. Whether legal aid should be available to the co-defender was also considered by the Commission. (See paras 2.36–2.45 of Memorandum No. 18.)
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Scottish Law Commission's Report No. 42 (1976)
By the time the Commission published its Report43 on the subject of damages for adultery and enticement, it had become clear that legislation on divorce similar to that in operation in England since the commencement of the Divorce Reform Act 196944 was likely to be enacted for Scotland. The philosophy of concentrating on the fact of the breakdown of the marriage rather than on considerations of matrimonial fault appears plainly to have affected the resolution of the question whether a right to damages should continue in respect of adultery. (See paras 3 and 4 of the Report.)
The Commission stated that, in response to their Memorandum on the subject, the “great weight of the comments which were received was in favour of abolition and this accords with our own conclusions reached on a balance of the compelling arguments”.
The Commission proceeded to set out and discuss five arguments, two in favour of retention of the action for damages for adultery and three in favour of abolition.
The first argument in favour of retaining the action was that the paramour should compensate the husband for his wounded private feelings and for his public disgrace arising from the act of adultery. The Commission responded to this argument by stating that
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Scot. Law Com. No. 42, Family Law: Report on Liability for Adultery and Enticement of a Spouse (June 1976).
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44
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Now the Matrimonial Causes Act 1973.
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“[w]hether we regard the basis of the paramour's liability as a species of affront or insult or wrong against the husband's feelings or honour (on the analogy of the Roman Law actio injuriarum), or whether we regard it as the infringement of the husband's exclusive right to the possession of his wife's body (on the analogy of the Common Law action of criminal conversation), the liability appears difficult to defend. On the one hand, the notion of compensating a husband for the wrong to his pride or honour seems open to the objection that an action for damages would simply add to his own humiliation and the family's disgrace. On the other hand, the notion of a possessory or quasi-proprietary right is seen by many as degrading the wife to the status of a piece of property”. (para. 9)
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The Commission pointed out that authorities “on inter alia the Common Law action of criminal conversation and the Civil Law actio injuriarum both influenced the development of the Scottish delict in its formative period”.
The second argument in favour of retaining the action was based on its deterrent effect on those contemplating interfering with the stability of family relations. The Commission did not consider that this argument was convincing, contending that adultery occurred for a number of reasons, in many of which the legal implications would be either unknown or discounted. It also argued that the existence of the right to damages had not prevented an increase in the number of divorce decrees in Scotland for adultery.
The first argument in favour of abolishing the action was that the social detriment arising from such actions outweighed the social benefits. It was suggested by those consulted who favoured abolition of the action that it encouraged malicious and vindictive claims and “would set a premium on motives of revenge”. The Commission
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referred to the statement of the Faculty of Advocates, commenting on the Commission's Memorandum, to the effect that, on the balance of convenience, “it would seem more practicable to remove once and for all a right that has already for all practical purposes fallen into desuetude”, rather than to undertake the difficult task of reforming it to bring it more in line with contemporary views. (See para. 14 of the Scottish Commission Report.)
The second argument in favour of abolishing the action has been referred to already, namely, that its retention was quite inconsistent with the social policy underlying the change from a fault-based divorce to one based on the breakdown concept. The Commission considered that “there is force in this argument”.
The third argument in favour of abolishing the action was one frequently made in the United States but echoed in other jurisdictions, namely, that the action gave rise to risks of “gold-digging” proceedings and threats of blackmail. The Commission did not consider either of these risks to be relevant to the Scottish experience. It added:
“In Scotland, the main problem is to find some acceptable justification for retaining a claim which is little used. If, however, the action of damages for adultery were to be modernised along the lines referred to briefly in paragraph 13 above and (in more detail) in our Memorandum No. 18, and if such actions were to be encouraged by the law, the possibility would arise that the abuses experienced in other jurisdictions would emerge in Scotland.” (para. 16)
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Para. 13 of the Report (which is worth quoting in full) is as follows:
“13. It seems probable that the protection of family relations and of stable married life formed an important social objective in the development of the
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action of damages for adultery. We consider that objective to be one of the most important aims of the law, but we think that, in recent times, actions of damages for adultery have in practice failed to achieve their original and still important social purpose. The achievement of that purpose must be sought in other ways than by delictual claims. It is, we think, better to recognise the failure by abolishing the action than by extending to wives a title to sue a similar action against a husband's paramour or by providing for increased awards of damages or solatium against the paramour or by refurbishing and encouraging the action in other ways.”
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The Commission recommended “for all these reasons” that the action by a husband for damages for adultery be abolished. The Commission considered that it was not necessary to provide specifically that the wife should not have a right of action, since, although on principle she might be able to sue, “we do not think that the Scottish courts would now recognise the competence of such an action, at any rate if, as we propose, the husband's right to damages is abolished”. Nor did the Commission consider that it was necessary specifically to declare incompetent the right of one spouse to sue another for damages for adultery or the right of a spouse to obtain an interdict against future acts of adultery. Neither had been recognised by a Scottish Court and the Commission did not consider that a Court in the future would recognise either right.
The Commission then turned to the subject of the paramour's liability for the expenses of an action of divorce at the instance of the pursuer. After extended discussion of the matter, it recommended that it should no longer be competent for a husband to cite his wife's alleged paramour as a co-defender in an action of divorce and that the liability of a paramour to pay the expenses of a divorce
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action should arise only when he had taken part in the proceedings, the normal principle governing awards of expenses in civil litigation being applied.
Finally, the Commission turned to the subject of the action for damages for enticement. It repeated the arguments that it had made in its Memorandum (No. 18) in favour of abolishing the action and concluded that
“[w]ith only one exception, all of those who submitted comments on our Memorandum, including the bodies representative of the legal profession, agreed with our provisional views that such actions should be abolished, if they exist. We therefore recommend that the action for enticement of a spouse should be declared by statute to be incompetent”. (para. 46)
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The Divorce (Scotland) Act 1976, which came into effect on 1 January 1977, provides in section 10(1) (b) that a husband may not claim or obtain damages (including solatium) from a paramour by way of reparation. It also gives effect to the Scottish Law Commission's proposals regarding the liability of a paramour for expenses in divorce actions – section 10(2). The Act does not, however, abolish the right to damages for enticement, as the Scottish Law Commission had recommended. The issue whether such an action is competent in Scotland would, therefore, still appear to be a live one.
(c) France
Adultery is in French law a civil wrong in respect of which the innocent spouse may sue the guilty spouse for damages. No action may, however, be brought against the paramour. Formerly, adultery was also a criminal offence. Different rules applied as between the husband and the wife. Whereas a guilty wife, as well as her paramour, might be sentenced to imprisonment, a guilty husband could only be fined, and
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his paramour was not punishable. Moreover, a wife could be convicted of a simple act of adultery whereas a husband could be convicted only of adultery where he had maintained a mistress in the marital home. The criminal proceedings could be brought only on the complaint of the injured spouse, and a wife's sentence could be terminated by her husband consenting to take her back into his home.
(d) Federal Republic of Germany
In German law, “there is no claim against the co-respondent for damages resulting from the termination of married life”. If his or her name is known it is inserted in the judgment granting the divorce. Adultery, however, constitutes a criminal offence for which both parties may be punished. The public prosecutor is in charge of the prosecution, but prosecution is only by application of the innocent spouse. Such application “is very rarely made”. The rule in German law “according to which an adulterer may not marry the adulteress” is “now of purely academic value, because the law provides that exemption may be granted from this rule and this exemption is in practice very frequently granted.” (See E.J. Cohn, Manual of German Law (2nd ed. 1968) vol. I, paras 489 and 496.)
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CHAPTER 3 THE LAW IN NORTH AMERICAN AND WEST INDIAN LEGAL SYSTEMS
(a) Canada (Common Law Provinces)
A Background
(1) Criminal Conversation
The common law action for criminal conversation still exists in New Brunswick, Newfoundland and Nova Scotia. In Manitoba and Saskatchewan, legislation confers jurisdiction on the Court of Queen's Bench to entertain actions for criminal conversation, the law regarding such actions being the same as that which applies in our jurisdiction. In British Columbia, there is a statutory right to damages for adultery, and in Alberta similar legislation has been enacted, which, however, specifically provides that a number of defences (including condonation, connivance, cruelty and adultery on the part of the plaintiff) will defeat the action.
In those Provinces still retaining the common law action, the existence of an absolute or discretionary bar to divorce does not of itself disentitle the plaintiff to damages. In all Provinces (other than Alberta) where damages may be claimed the action is available only to the husband. Damages are awarded on the same principles as in this country.
(2) Enticement and Harbouring
In practically all the Common Law Provinces actions for enticement and harbouring may be taken. In British Columbia
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and Alberta, however, a wife may sue for enticement and the same was true in Ontario before 1978.
B Reform of the Law
The Ontario Law Reform Commission in 1969 recommended the abolition of the actions for criminal conversation, enticement and harbouring of a spouse.
In December 1977, the Ontario Court of Appeal held that the action for criminal conversation had been implicitly abolished by the Family Law Reform Act 1975, section 1 of which provides that both spouses should have legal personalities that are independent, separate and distinct from each other, and that a married person should have the same legal capacity as a single person. The Court rejected the argument that the effect of this provision was to confer a right of action on the wife, in addition to the previous right of action of the husband. Mr Justice Dubin stated:
“.... For the present purpose, I think the statute abolishes any proprietary interest that it is said a husband previously had in his wife, and as a corollary does not grant a wife a proprietary interest in her husband”. (Skinner v. Allen (1978) 18 O.R. (2d) 3, 9)
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Recent legislation in Ontario abolishes the actions for criminal conversation, enticement or harbouring of a spouse, loss of consortium of a spouse and enticement, harbouring, seduction or loss of services of a child. (See section 69 of the Family Law Reform Act 1978 (which came into operation on 31 March 1978).)
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The Family Law Study in Newfoundland also examined the law in these areas and recommended the abolition of those actions.45 It noted that the actions had been developed “in recognition of the property interest which, by tradition, a husband or parent had in the services of his wife....” and that, in addition, the remedies “were designed to preserve and serve the family unit as a cornerstone of society”. Having rejected the validity of the property interest theory it went on to reject the protection of the family unit theory on the grounds that the current divorce legislation was such that the husband no longer had an interest which could be protected by the remedy in criminal conversation proceedings. On the same reasoning, it concluded that the continued existence of the actions for enticement and harbouring cannot in any way be said to protect the family unit.
In Prince Edward Island, recent legislation46 has abolished criminal conversation, enticement and harbouring of a spouse.
In Nova Scotia, the position regarding possible reform of the law is that, if legislative proposals on other aspects of family law recently before the legislature are enacted, it is contemplated that certain actions concerning the marriage relationship (including actions for criminal conversation, enticement and harbouring) will be reviewed.