The Effect of the Decree after 1884

Under ecclesiastical law, as Seaver v Seaver had shown, voluntary separation by the spouses was not permitted—the spouses must either cohabit, or be granted the right to separate by the ecclesiastical court.61 However, the common law and equity courts took a different view, upholding voluntary separation agreements62 on the basis that, at least since the Reformation, it had not been regarded as illegal to live apart. In so holding, the civil courts were rejecting the view that there were only two states recognised whilst a marriage was in being—cohabitation or legally sanctioned separation. But, as Hope v Hope and Brooking-Phillips demonstrated, this could still leave

The Suit for Restitution of Conjugal Rights 83

63 Law Commission, Reform of the Grounds of Divorce: The Field of Choice (Law Com No 6, 1966), para 15.

64 Russell v Russell [1897] AC 395, HL.

65 Russell v Russell [1895] P 315.

66 See Cretney (n 4) 203–05 for the aftermath—the husband went through a Nevada divorce, which was unrecognised in this country. His second marriage was therefore bigamous and he was sentenced to imprisonment. He eventually bought off the first wife, who agreed to divorce him. As Cretney notes (ibid at 204), ‘It is not surprising that his experiences converted the Earl into a dedicated campaigner for reform of the divorce laws.’ For a sympathetic account of the husband’s case, see A Sumner Holmes, ‘“Don’t Frighten the Horses”: the Russell Divorce Case’

in Robb and Erber (eds) (n 27) 140.

67 For the best dramatic evocation of that position, compounded by the hypocrisy of the law, see A Herbert, Holy Deadlock (1934), and for a modern-day example, see Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74.

68 See, eg, Beer v Beer (1906) 94 LT 704 (wife refused restitution decree because husband had just cause for leaving her—but he failed to prove grounds to be granted a judicial separation from her); Walter v Walter [1921] P 302 (parties reached a separation agreement so decree refused as it was clear they would not resume cohabitation).

the marriage in a third, twilight zone—an empty legal shell, as the Law Commission would later describe it.63

This was even more clearly demonstrated in the notorious case of Russell v Russell.64 The spouses separated after a few months of marriage and the wife brought proceedings for a judicial separation, alleging that the husband had committed homosexual acts with a friend. These allegations were rejected, but she and her mother continued to spread rumours, and the husband successfully brought a prosecution for criminal libel against the mother, who was sent to prison. The wife then sought restitution of conjugal rights in a further attempt to negotiate a financial settlement with the husband. He responded by suing her for judicial separation, alleging cruelty based on her behaviour in perpetuating the allegations. The jury found for the husband and the wife appealed. The Court of Appeal rejected the wife’s argument that she was entitled to a restitution decree. It considered that, given her behaviour, it would be unjust to expect the husband to resume cohabitation with her, and granting a decree that he would then inevitably disobey would, as a consequence of the 1884 Act, put him in statutory desertion.65 This would be contrary to the justice of the case. The wife with- drew her appeal against that ruling, but the House of Lords then rejected the husband’s argument that ‘cruelty’ could be committed without putting the other spouse in ‘danger’ to life, limb or health. This meant that he was not entitled to a judicial separation. The spouses therefore remained in the position that they were neither obliged to live together, nor entitled to ter- minate their relationship.66 (Of course, this is a condition that any spouses may find themselves in where the law does not permit unilateral divorce without cause.)67 The law gave priority to the public policy of upholding the institution of marriage at a symbolic level, whilst accepting that the reality was that spouses could be morally entitled to live apart.

The Court of Appeal’s ruling in Russell was followed in several cases.68 But the trend was by no means consistent. The importance of ‘upholding

69 Greene v Greene [1916] P 188.

70 Brodie v Brodie [1917] P 271.

71 Oldroyd v Oldroyd [1896] P 175, 187.

72 See ch 4.

73 Nanda v Nanda [1968] P 351.

the sanctity of marriage’ could also mean that the courts took a strict view of what was morally acceptable marital behaviour. For example, in Greene v Greene,69 the Court accepted that the wife drank to excess, was ‘furiously jealous’, made untrue accusations and engaged in hysterical outbursts. It did not, however, consider that any of this gave the husband ‘reasonable grounds’ for leaving her, and granted her the restitution decree. Perhaps this stance reflected the court’s recognition that wives could be placed in extreme financial hardship if their husbands were not required to support them financially. This appears to be a partial rationale for the decision in Brodie v Brodie.70 There was a ‘shotgun wedding’, but the husband made the wife sign a pre-nuptial agreement that they would not live together or take any proceedings against each other afterwards. He brought a simi- lar agreement along to the register office and they both signed it after the ceremony. The wife subsequently sought a restitution decree, presumably to secure maintenance or evidence of desertion. The court held that the two documents formed one agreement, which was void on the ground of public policy as contemplating future separation, so the wife was held entitled to her decree. Even more strikingly, in Oldroyd v Oldroyd,71 the court granted a decree where the spouses, who were both marrying for the second time and bringing their respective children to live in the ‘blended’ family, fell out because the husband’s daughters quarrelled with the wife and her daughter, and the husband chose to side with his own children, resulting in the wife leaving him and his refusing to have her back. The judge held that the husband’s ‘first duty is towards his wife. She and he are compelled to live their lives together, and it is his duty so to control and arrange his household that he and his wife may lead their lives in peace.’ This seems to have been a rare example of a case where the court at least appears to have considered (despite the husband’s allegation that she was simply seeking an order for maintenance) that the wife genuinely wished to resume cohabitation, and where its order was intended to bring both the husband and his daughters to their senses.

During the twentieth century, use of the decree became even more uncom- mon, as spouses had other remedies they could use to deal with marital problems, including suits for maintenance, separation orders and, of course, ultimately for divorce.72 The futility of the order was increasingly acknowl- edged, as shown in Nanda v Nanda73 in 1968. The spouses had married in India, but when the husband came to settle in England, he cohabited with another woman by whom he had two children. His wife followed him, and

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74 Cretney (n 4) 143.

75 Matrimonial Causes Act 1878 and Summary Jurisdiction (Married Women) Act 1895.

See ch 4, section II.A.

76 L Stone, Uncertain Unions: Marriage in England 1660–1753 (Oxford, Oxford University Press, 1992).

77 (1746–47), discussed by Stone, ibid ch 4. Where a nullity suit was rejected, the other spouse could seek a decree for restitution of conjugal rights within the same proceedings, obviating the need to cross-petition: Clowes v Jones (1842) 163 ER 697.

on failing to break up his new relationship, obtained a decree for restitution of conjugal rights. As Payne J stated, ‘she promptly took steps to enforce the decree by her own means’, eventually gaining entry to the husband’s home and refusing to leave. The husband sought non-molestation and ouster injunctions, and the judge held that although it was understandable that the wife might have been misled by the language as to the form and effect of the decree, it gave her no right to anything more than maintenance, or to take proceedings for a judicial separation or eventually a divorce in the event of the husband’s non-compliance. The suit had become an unnecessary step towards obtaining more meaningful remedies for marriage breakdown, and it was abolished in 1970, as discussed in section III.E.

The Ostensible Purpose of the Decree

The Tactical use of the Suit