The Tactical use of the Suit

The history of the restitution decree therefore demonstrates the gradual recognition of the futility of attempting to use the law to make spouses stay together or reconcile. Although Cretney suggests that the ecclesiastical courts ‘had been concerned to enforce the obligations of matrimony’,74 the reasons why most individual litigants brought such suits seem to have had little to do with wishing to secure a reconciliation with the other spouse.

Rather, the motivation was generally tactical. The purpose, however, changed over time, from a concern to affirm the validity of a marriage, to a desire to secure financial provision, with an interim phase when obtaining the decree provided a short-cut for wives seeking a divorce. However, the expense of bringing restitution proceedings, at a time when cases were heard only in London, generally meant that litigants had to be people of means.

For those who could not afford the cost, the magistrates’ courts eventually provided a means of obtaining a separation and financial provision75 but not for speeding up a divorce.

i. To Establish the Validity of a Marriage

According to Stone, before the mid-eighteenth century at least, the action was used primarily as a means of establishing or defending the existence—

and validity—of a marriage.76 In Moseley v Collier,77 for example, the man

78 See Stone (n 29) ch 2; R Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge, Cambridge University Press, 2009) ch 2.

79 For further examples, see Stone (n 76) chs 5, 18, 20.

80 Scrimshire (otherwise Jones) v Scrimshire (1752) [1558–1774] All ER Rep 554, 564.

81 See too Countess de Gasquet James v Duke of Mecklenburg-Schwerin [1914] P 53: parties married in Dover but returned to the Continent immediately afterwards (undergoing a religious ceremony in Dinan). Marriage annulled in Germany because husband had not had his curator’s consent. Wife sought restitution of conjugal rights, in order to establish the validity of their marriage, but decree refused on the ground that service could not be effected out of the jurisdiction.

82 Legitimacy Declaration Act 1858.

brought the action, claiming that the parties had entered into a marriage

‘per verba de praesenti’, that is, by the mutual exchange of vows, which, in canon law, created a valid marriage. However, while the common law recognised such a marriage as creating a contract for marriage between the parties, it denied it full legal consequences unless it was followed by solemnisation in church, particularly as to the ownership or inheritance of property.78 The petitioner claimed that the woman had insisted the marriage be kept secret because she was afraid that she would be disinherited if her parents knew of it. He now wanted the ecclesiastical court to order her to go through a church marriage ceremony with him to complete the formalities—

a different form of enforcing the duty to cohabit. Although he succeeded at first instance, the Court of Arches allowed the woman’s appeal due to lack of clear evidence for the contract.79

A more complex case involving conflict of laws issues arose in Scrimshire (otherwise Jones) v Scrimshire.80 The 15-year-old woman and 18-year-old man were married in France where they were each visiting relatives, in a private house by an unauthorised priest according to Roman Catholic (‘Romish’) rites. The marriage was annulled in France at the suit of the man’s mother because neither had obtained parental consent, and the woman was banished from France for having gone through a clandestine marriage. She sought a decree of restitution of conjugal rights from the London Consistory Court, arguing that the marriage was ‘irregular’ under English law but not void.

The decision established the lex loci celebrationis as determining which law governs the formalities of a marriage, so that she lost her suit, but the judge, Sir Edward Simpson, who regarded her as ‘a lady of good character’, awarded her £400 costs, expressing the hope that ‘the lady may be happy … in a man that deserves her better’.81

ii. To Provide Evidence of Desertion to Bolster a Wife’s Divorce Petition With the demise of the clandestine marriage, and later the introduction of a specific action for a declaration as to the validity of the marriage,82 the basis for seeking a restitution decree shifted. Reflecting the sexual double

The Suit for Restitution of Conjugal Rights 87

83 See n 55.

84 For an example, see Cowley v Cowley [1913] P 159. It also obviated the two-year requirement to ground an action for judicial separation.

85 Countess de Gasquet James v Duke of Mecklenburg-Schwerin [1914] P 53.

86 ibid, 66. For further discussion, see Davies (n 3) 318.

87 Royal Commission on Divorce and Matrimonial Causes (1912) paras 377, 102. In fact, the wife had to wait six months after the restitution decree before she could petition for divorce.

John Galsworthy’s Forsyte Saga novel, In Chancery (1920), includes a plot line involving a wife who obtains a restitution decree in order to obtain evidence of the husband’s desertion, but he returns to her before the six months have expired, thus preventing her from divorcing him.

88 Royal Commission (1912), Minutes of Evidence, vol III, paras 35, 519 et seq. See also Minutes of Evidence, vol I, paras 1444 et seq.

standard exposed by Lynch v Knight, when the Matrimonial Causes Act 1857 introduced judicial divorce, it provided that while a husband could divorce his wife on the basis of her adultery alone, a wife must prove an aggravating factor as well as her husband’s adultery, such as incest, cruelty, rape83 or that he had been in desertion for two years. As discussed in section III.C, the 1884 Act subsequently provided that failure to comply with a restitution decree would constitute desertion and provide the aggravating factor without having to satisfy the two-year requirement.84 By the early twentieth century, in Countess de Gasquet James v Duke of Mecklen- burg-Schwerin,85 Sir Samuel Evans P noted that most restitution suits were being brought to establish evidence of desertion.86 The Gorell Commission on Divorce, which reported in 1912, also argued that the suit was ‘seldom used with the bona fide object of effecting a return to cohabitation, though causes of this character are not unknown’. Rather, ‘collusion’ in divorce proceedings was particularly likely to arise in cases where, in the absence of the husband’s having committed a matrimonial offence in addition to adultery, he and his wife would agree that she should seek a restitution decree which he would disobey, so that he could be found to be in desertion and thus ‘give’ her grounds for divorce without having to wait a further two years.87 As the Chairman put it to a witness:

I will tell you how it is done. Assume there is the collusion which you mention, but not detectable. You have only to go to the expense of the wife writing a letter to the husband who does not come home, saying, ‘I want you to return to me,’ and his declining to do so, and it follows at once he is liable to a suit for restitution.

Upon that suit being got through, which is done if he does not appear, desertion for two years is declared, and then she adds to the one act of adultery one cause of desertion, and obtains her decree … That is the commonest form possible.

– I am quite aware of that.

Except for the poor, who would not be able to afford the expense of that restitution suit, there is no practical difficulty whatever in a woman getting a divorce for one act of adultery now?

– The King’s Proctor cannot stop that.88

89 Cretney (n 4) 146, fn 30, and 147, fn 41, who also refers to Galsworthy’s In Chancery.

90 ‘Alimony’ was an unsecured annual or total sum reflecting the husband’s continu- ing common law duty to support his wife. For the different forms of support that could be ordered in matrimonial proceedings, see J Barton, ‘The Enforcement of Financial Provision’ in Graveson and Crane (eds) (n 3) 352.

91 See Bailey (n 29) 12, 50–51, 53–54. She notes (ibid at 200) that a variety of legal actions might be taken to ‘persuade’ the other spouse to reach a suitable settlement, in one case the wife abandoning her judicial separation when a private separation was achieved, and then launching a restitution suit ‘when that in turn failed to meet her needs’. Ingram (n 29 at 181) notes that restitution and judicial separation were frequently cross-petitioned, the one being prayed in answer to the other.

92 Hope v Hope (1858) 164 ER 644, discussed in section III.B.

As Russell v Russell had demonstrated, however, a court might be reluctant to grant restitution against a respondent who refused to return to cohabitation, if it considered that the justice of the case lay with the respondent.

And as Cretney points out, the respondent spouse might actually comply with the decree, thus frustrating the whole object of the exercise.89 Divorce reform through the Matrimonial Causes Act 1923, following from the recommendations of the Gorell Commission, resulted in the abolition of

‘statutory desertion’, obviating the need to bring restitution proceedings to speed up a divorce.

iii. To Secure Financial Support

Although the ostensible purpose of a restitution decree was to compel the spouses to return to cohabitation, the ecclesiastical court could award financial support, in the form of ‘alimony’90 for the wife while the suit was pending. If the husband failed to comply with the restitution decree, the wife could usually obtain a divorce a mensa et thoro based on his adultery or cruelty, and the court could then award her ‘permanent alimony’.

This was necessary, because until the property law reforms of the late nineteenth century, the husband was entitled to all of the wife’s property (unless it was protected as her ‘separate property’ under a trust). Allow- ing her to live separately from him without providing for financial support would therefore have left many wives destitute. The Matrimonial Causes Act 1857, section 17 obviated the need to obtain a judicial separation, by providing that a wife successfully applying for a restitution decree could be awarded permanent alimony. Thus, even when restitution had been sought as a means of establishing the validity of the marriage or as a basis for establishing desertion, a second (but not necessarily subsidiary) objective had frequently been to pave the way for the award of financial support or to compromise the suit if a suitable private agreement could be reached between the parties.91

In Hope v Hope,92 the counsel for the wife readily admitted that she brought her restitution suit ‘from absolute necessity, with a view to obtain

The Suit for Restitution of Conjugal Rights 89

93 Marshall v Marshall (1879) 5 PD 19, 23.

94 Although in the 18th century, this had not been seen as a bar in Equity—see Stone (n 29) 156. For an extreme example, see Brodie v Brodie [1917] P 271, discussed in section III.C.

95 See also Scott v Scott (1865) 164 ER 1458, 1459, where the wife argued that the husband’s action was only being brought to ‘extort money from her and her mother’; and Giaco- metti v Prodgers (1872) LR 14 Eq 253, where the very wealthy wife entered into a separation agreement to forestall the husband’s bringing a restitution suit against her.

96 Hunt v Hunt (n 62): enforceable against husband; Marshall v Marshall (n 2): enforceable against wife.

97 McQuiban v McQuiban [1913] P 208.

98 Mann v Mann [1922] All ER Rep 777.

a maintenance from her husband’, although, as we have seen, her adultery was held to preclude her succeeding. Indeed, in Marshall v Marshall, Hannen P stated that ‘I have never known an instance in which it appeared that the suit was instituted for any other purpose than to enforce a money demand.’93 Such ‘demands’ would generally be made in negotiations for separation agreements. The common law and equity courts, as we have noted, upheld these agreements, provided that they were not made with a view to future separation.94

Restitution suits might be brought to seek to ‘persuade’ the other spouse to negotiate seriously for such an agreement; indeed, Russell v Russell is an example of such a case.95 But they were also sometimes brought even where a separation agreement had previously been reached, in order to secure further provision or to seek to override other terms. Such an agreement invariably contained a clause covenanting not to take legal proceedings, including for restitution of conjugal rights, against the other party. By the late nineteenth century, such clauses were regarded as enforceable against both husband and wife.96 However, in McQuiban v McQuiban,97 the court allowed a suit to proceed where the husband had fallen into arrears on the payments that had been agreed and had petitioned for bankruptcy. An award of alimony would not be a provable debt in the bankruptcy, and would thus survive to be paid back when he became solvent again. Since, in the view of the Court, the ‘very foundation’ of the separation deed had been the husband’s obligation to maintain the wife and their child, the ouster clause should not be regarded as a bar to her suit. The case provides a very clear example of a restitution decree’s being used as the vehicle for the provision of financial support.

Perhaps an even clearer case can be seen in Mann v Mann.98 The spouses had married in secret because the wife did not think her family would approve of the match. She went with her parents to Trinidad, where she met another man who wished to marry her, and she unsuccessfully sought an annulment of the first marriage. The First World War then intervened, and the husband enlisted. She obtained a restitution decree, which the husband ignored. She told his solicitors that she would not seek any financial

99 Bailey (n 29) 216, Appendix 18. See similarly Ingram (n 29) 181–82 for the 16th and early 17th centuries.

100 Unfortunately, data are missing or discrepant as between those provided in Home Office, Divorce and Matrimonial Causes (London, Hansard, 1889) 2; the Home Office, Judicial Statistics, England and Wales, 1898, Part II—Civil Judicial Statistics (Cd 181, 1900) Tables

xlv–xlviii; the Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956) Tables 1, 2; and ONS, Divorces in England and Wales: 2014 (2016) Table 1. The number of divorces and judicial separations are those provided in 1889 and 1900; the number of restitution petitions and decrees are those recorded in 1900 and by the Morton Royal Commission.

101 Morton Royal Commission (1956) Tables 1, 2. The highest number of restitution petitions (497) was issued in 1920, resulting in a backlog of cases not disposed of until 1921:

see Table 3.1.

provision from him while he was on active service. Six years later, in 1921, when presumably she had lost the chance of marrying the more eligible suitor, she sought periodical payments, and the court held that these could be back-dated to the time of the decree.

The Ostensible Purpose of the Decree

The Effect of the Decree after 1884