Sherry-Ann McGregor, Contributor
MCGREGOR
A MARRIAGE is an agreement by which a man and a woman enter into a legal relationship with each other thereby creating and imposing mutual rights and obligations.
At common law, marriage had the effect of fusing the legal personalities of the husband and wife into one. In fact, it used to be said that it was the woman's legal existence which became suspended at the time of marriage; she would exist under her husband's wing or cover and he became her lord or baron.
As independent, modern women, it is difficult to fathom a scenario in which our right to own property or to earn a living is constrained solely by reason of marital status, but that is exactly what maintained prior to the late 19th century. I will itemise some of the legal effects of a pre-19th century marriage:
A husband was bound to provide for his wife and pay all her debts.
If a wife committed a tort (civil wrong) or if she was wronged, it would be proper for her husband to be joined in any court action as the co-plaintiff or the co-defendant, as necessary. In other words, a wife could not bring or defend an action solely in her name.
Spouses had a mutual obligation to cohabit as husband and wife and share the matrimonial home. This obligation could be fulfilled without continuous cohabitation if the reason the parties could only cohabit from time to time was because the husband had to be away from home for long periods of time on business or as a member of the armed forces.
A woman was entitled to use her husband's surname after marriage, but had a right to retain and use her own name if she chose to. She could continue to bear her husband's name even after divorce, and the former husband would have no right to sue her for an injunction to prevent her from continuing to use his name.
In any disputes which arose between spouses as to where the matrimonial home should be, it was accepted that the husband had the deciding vote. Provided the husband could prove that the home was not chosen to spite his wife, she was obligated to share that home with him. If she refused to do so, she would commit the offence of desertion.
Each spouse had a duty to consummate the marriage, and the refusal or incapacity of one spouse to do so entitled the other to a decree of nullity. The right to sexual intercourse continued after the marriage, provided that it was reasonably exercised. In the English Court of Appeal case of Foster v Foster, it was determined that a husband could not insist upon intercourse if he knew that he was suffering from a venereal disease.
We have moved away from some of these principles, e.g. a wife is responsible for her own debts, she can sue and be sued in her own name, she has an equal right to choose the situation of the matrimonial home and the failure or refusal to consummate the marriage is no longer a basis for an application for a decree of nullity.
From a wife's perspective, it may be said that progress has come at a price because, now that women have gained greater independence in many respects, wives no longer have the absolute security of the wings or cover of their husbands.
Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send comments and feedback to lawsofeve@yahoo.com.
