Mcgregor

Last week's article pointed out that one spouse can recover compensation when the love and affection of the other are deliberately taken away by a lover. Love and affection are elements of what is known in law as a 'right of consortium' not capable of precise definition, consortium is often accepted to mean, "living together with the incidents that flow from that relationship".

Did you know that when a third party injures a married man rendering him unable to enjoy his right of consortium by having sexual intercourse with his wife, he can recover compensation for the loss of that right? This has always been the law, but the question is whether a married woman enjoys a similar right to claim.

Questions related to this issue have even been the subject of decisions in The House of Lords, England's highest court. One such case was Best v Fox, which was decided in 1962.

Sexual incompetence

The husband was 30 years old when he suffered serious injuries on the job, resulting in some form of sexual incompetence. In his claim against the third party, he recovered compensation for his losses, and six months later his wife brought a claim to recover similar compensation.

Then 25 years old, she claimed that because of her husband's injury, she was deprived of the opportunity to have normal marital relations and the prospect of having other children. She said she had become nervous, irritable and suffered from insomnia. Surprisingly, her claim was dismissed by the trial court, the Court of Appeal and the House of Lords.

Based on this ruling, the wife and husband do not enjoy equal rights of consortium. In other words, the husband was entitled to sue to recover damages for loss of consortium whether he or his wife suffered an injury which prevented him from enjoying marital relations with her. However, even if her injury prevented her from enjoying conjugal privileges with her husband, she had no right to recover compensation for that loss.

While members of the court admitted that this law was an anomaly in the present day and was illogical, one judge was particularly unapologetic when he said that this was no basis for rejecting the law. In fact, the law lord suggested that it would be better to abolish the right for the husband to bring that action than to extend it to include a similar remedy for the wife, because the right to claim emerged at a time when a wife was considered her husband's property.

Do you agree? Should wives have the same right as husbands in this case England has not yet accepted common-law unions, one wonders whether any right of consortium exists in common-law relationships under Jamaican law, where for many purposes they are placed on the same level as legal marriages.