The Ostensible Purpose of the Decree

The name given to the remedy offered by the ecclesiastical courts implies that the purpose of a restitution suit was to restore the spouses to each other’s company, in order to allow each to enjoy their full rights of con- sortium. Indeed, the decree required the (husband) respondent to ‘take the petitioner home and treat her with conjugal affection’.36 However, in Forster v Forster,37 the London Consistory Court noted that ‘the duty of matrimonial intercourse cannot be compelled by this Court, though matrimonial cohabitation may’. The husband had sought a divorce a mensa et thoro (judicial separation) on the basis of his wife’s adultery. This was refused because of his own probable adultery and proven neglect of the wife (including his withdrawal from her bed). The Court went on to add that it

is not however to be considered as a matter perfectly light in the behaviour of a complaining husband, that he has withdrawn himself without cause, and without consent, from the discharge of duties that belong to the very institution of marriage; and if he has so done, he ought to feel less surprise if consequences of human infirmity [ie adultery by his wife] should ensue.38

It was candidly recognised in Seaver v Seaver that the effect of the law was to keep the two spouses legally bound together even though they might hate and despise each other.39 The spouses had both committed adultery and had each lost suits for divorce a mensa et thoro on that basis. The wife then sued for restitution, and it was held that in the absence of a ‘divorce’, the parties remained bound to live together so that the decree must be granted.

To rule otherwise would be to enable each spouse to ‘free himself or herself from the matrimonial bond, though equally guilty … the Court Christian … will not tolerate the principle that either mutual crime or mutual compact can release or suspend the obligation of the marriage vow’.40 But the judges’

The Suit for Restitution of Conjugal Rights 79

41 Although the Matrimonial Causes Act 1857, s 17 allowed for the award of ‘alimony’ on granting the decree.

42 Hope v Hope (1858) 164 ER 644.

43 Condonation meant forgiveness of the adultery; connivance meant standing by know- ingly while adultery took place. For discussion, see Cretney (n 4) 181–86.

44 Brooking-Phillips v Brooking-Phillips [1913] P 80.

45 (1846) 164 ER 1156. See n 39.

46 ibid, 1170. He criticised the common law stance, which seems to have been adopted without question in Hope v Hope, that a guilty wife could be left penniless: ‘This shocks every feeling of justice and humanity, and is most repugnant to the Ecclesiastical Law, which visits with equal condemnation adultery committed by the husband or by the wife, and will secure to the penitent that justice which is denied to her by her profligate husband.’

concern was not solely a spiritual one. They were bothered by the possible destitution (and sexual degradation) of the wife if the husband were not obliged to take her back or, much more likely, come to some financial arrangement with her.

This does not seem to have been a concern for the civil judges who took over the jurisdiction after 1857.41 Perhaps because Seaver was decided in Ireland, it did not reach the attention of the English courts, and Hope v Hope,42 a restitution suit taken over from the Consistory Court when the Matrimonial Causes Act 1857 came into force, was decided the other way. Sir Cresswell Creswell held that the fact that both parties had committed adultery did not wipe out each other’s offence unless condonation or connivance was proved.43 Thus, the wife remained an adulteress who had lost her common law right to maintenance and would, if the husband had been innocent, have failed in seeking a restitution decree because of her own guilt. The court would not therefore permit her to take advantage of mutual wrong, and it refused her the decree. But the parties remained married to each other, although the wife was presumably at risk of destitution because the husband did not have to support her. This decision was upheld in the much later case of Brooking-Phillips v Brooking-Phillips.44 The wife sought a restitution decree, but the husband alleged she had committed adultery.

When she tried to introduce evidence of his own adultery so as to rely on Seaver—which had by now appeared in the Law Reports—the Court held that this was irrelevant to establishing a restitution suit since the basis for the claim was purely the non-cohabitation of the spouses (usually through desertion), not another matrimonial offence such as adultery or cruelty. The wife could not be restored to the ‘condition of an innocent person with refer- ence to her conjugal rights’ just because of the husband’s equal misconduct.

As with Mrs Hope, Mrs Brooking-Phillips was left in the position of a wife who had lost her right to maintenance but had no way out of the marriage.

In Seaver, in his draft judgment,45 Dr Longfield considered that a restitution ‘sentence’ decreed ‘not merely that the parties shall live together, but its effect in substance is that they shall fulfil all their matrimonial duties, of which fidelity to the nuptial bed is not the least important’.46

47 Orme v Orme (1824) 162 ER 335.

48 Interestingly, much later, in Evans v Evans [1948] 1 KB 175, 180, it was held that the word ‘cohabit’ used in Acts dealing with the grant of maintenance by the magistrates meant living together as ‘husband and wife’, and while this might not mean having sexual intercourse, it ‘implies a state of affairs very different from that of mere residence. It must mean that the wife is acting as a wife and has kept her status and position as a wife … is rendering wifely services to him and is acknowledged by the husband to be his wife.’ The word was contrasted with ‘reside’, also used in the Act, which the Court considered meant no more than living under the same roof. Restitution cases were not cited.

49 See section III.D.iii for tactical use of the suit precisely to secure maintenance when the spouses were separated.

50 (1824) 162 ER 335.

51 Bailey (n 29) 50.

52 Ingram (n 29) 188 (referring to orders made in cases ‘presented’ by the authorities).

53 Blackstone (n 30) 93, quoted by Hannen P in Weldon v Weldon (1883) 9 PD 52, 55, emphasis added.

By this, he was not suggesting that the husband had to take the wife back into his bed. Rather, in a rejection of the sexual double standard—at least where both spouses were ‘guilty’—he was warning the husband that he should not think he could commit adultery with impunity because of the fault of his wife.

The question of what precisely the decree required in terms of marital duty was addressed in Orme v Orme.47 There, the wife complained that although the husband allowed her to live in his house, he would not let her

‘have access to his person and bed, and refused [her] common necessar- ies for her support and maintenance’. The Consistory Court held that the decree was directed to restoring cohabitation, nothing else. Such ‘cohabitation’ meant no more than residence under the same roof.48 Even the supply of maintenance could not be compelled through the grant of a decree so long as the spouses were actually living in the same household.49 The Court regarded the suggestion that it might seek to enforce anything more than co-residence as ‘very far transgressing those bounds of interference to which it has restricted itself in modern practice’.50

The case demonstrates the limits of the decree, and researchers have doubted its effectiveness even as a means of restoring basic co-residence.51 As Ingram notes, ‘In the last resort, when the couple were bitterly at odds, there was little that the judges—or indeed anyone else—could do.’52 Blackstone, in a telling indication of the growing importance attached to individual autonomy and self-fulfilment by the end of the eighteenth century, described the action as

brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason, in which case they will be compelled to come together again, if either party be weak enough to desire it, contrary to the inclination of the other.53

The Suit for Restitution of Conjugal Rights 81

54 R v R [1992] 1 AC 599.

55 See the discussion by Shanley (n 8), ch 6. But note that when judicial divorce was intro- duced in 1857, rape was an aggravating factor enabling the wife to divorce an adulterous husband: see the text associated with (n 83).

56 A case decided in 1835 and discussed by Stone (n 29) 204.

57 Weldon v Weldon (1883) 9 PD 52.

58 Cretney (n 4), 144, fn 16, and see ibid, 144–45 for his discussion of the case and the parties. For a full account of Mrs Weldon’s life, her involvement in spiritualism, general eccen- tricity and talent for embarrassing her husband (and family), see Wise (n 25) ch 10. Their attempt to commit her to a lunatic asylum is reported in The Times (15 March 1884). Stone’s suggestion (n 29 at 168), that the use of private asylums to deal with troublesome wives died away after the mid-18th century seems contradicted by such cases (and by Wilkie Collins’ The Woman in White (1859)).

59 The husband withdrew his defence that the wife had committed adultery. She was permit- ted to make a denial of guilt from the witness box, describing the allegation as an ‘infamous lie’

and complaining at the court’s refusing to let her go on to make a statement: ‘I object to things being hushed up in this way’: The Times (14 July 1882).

Yet it is worth recalling that at that time (and of course, until 1991),54 a husband could not be criminally convicted of raping his wife, so that if he chose to enforce his right to have ‘access’ to her bed and body, he could do so.55 For example, in Belcher v Belcher,56 the husband infected his wife with venereal disease. She refused to sleep with him and he sued for restitution of conjugal rights. She counter-sued for divorce a mensa et thoro, arguing that he was guilty of cruelty, but the judge ruled that the husband had con- tracted the disease before the marriage. Only if the infection were the result of adultery by the husband, and inflicted on the wife deliberately by him, would it constitute cruelty. He therefore dismissed her suit and granted the husband his decree.

By the later part of the nineteenth century, however, as the Jackson case discussed in section II illustrated, judicial attitudes were definitely chang- ing, though perhaps the worst possible case to put them to the test was Weldon v Weldon57 in 1883. Here, the wife, a well-known and ‘flamboyant character’,58 and her husband had been separated for several years when she sued him for restitution of conjugal rights. She did this deliberately to embarrass him and to scupper his attempt to move her from the former matrimonial home, which she had turned into a kind of orphanage and general refuge for characters (including highly dubious confidence tricksters) to whom she had become attached. The decree was granted,59 but of course he refused to return to her. By this time, perhaps reflecting the ruling in Orme v Orme, the decree ordered the respondent to ‘take the petitioner home and receive her as his wife, and render her conjugal rights’, with no mention of the demonstration of ‘affection’ being part of the duty. Mrs Weldon was a litigant in person who took a highly robust approach to the Bench, and she sought to have the decree enforced by ‘attachment’ of her husband, that is, his committal to prison for contempt. Hannen P noted that the real

60 Cretney (n 4) 145.

61 The Divorce Court applied the same thinking in initially holding that it had no discretion to withhold a restitution decree if the respondent had failed to establish a recognised defence (there, cruelty) for her refusal to cohabit: Scott v Scott (1865) 164 ER 1458.

62 R v Mead (1758) 96 ER 1182; Westmeath v Westmeath (1821) 37 ER 797, 803. In Hunt v Hunt (1862) 45 ER 1168, 1171 it was said to be ‘impossible to ascertain’ how early it was that the common law accepted the validity of deeds of separation, per Lord Westbury LC.

See Stone (n 29) ch 7 for full discussion.

advantage (and usual purpose) of the restitution suit was to secure maintenance for a deserted wife, which the husband had shown himself prepared to provide. But he held that the power to order maintenance was in addition to and not in lieu of attachment, and accepted that there were no grounds for failing to enforce the decree in this case.

But the husband was not committed to prison. The publicity surrounding the case and other legal actions brought by Mrs Weldon, who was a serial, if not a vexatious, litigant, prompted the Government to act to ensure that such a ‘farce’, as her husband’s counsel had described it, could not happen again. Cretney notes that the Matrimonial Causes Act 1884 was enacted without any debate in either House of Parliament, or even an explanatory government statement.60 Presumably, the publicity surrounding the Weldon case made this unnecessary. The Act abolished the sanction of committal to prison for disobedience to the decree, substituting an order for periodical payments instead and providing that a refusal to comply with the decree would henceforth provide evidence of desertion (known as ‘statutory desertion’), which could be used to support a suit for judicial separation or, where the wife was the petitioner, for divorce if coupled with evidence of the husband’s adultery. The change reflected clearly the growing acceptance, set out by Blackstone a century earlier, that the law could not require the spouses to ‘care about’ each other, and should not be used to coerce them to resume living together when they no longer wished to do so.

The Effect of the Decree after 1884

The Tactical use of the Suit