Legal effects of marriage PDF

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LEGAL EFFECTS OF MARRIAGE The effects of the marriage cut across the different types of marriages recognised by the Constitution. The legal effects of marriage are as follows; 1. The parties acquire the status of being married. A person who gets married under the marriage act becomes incapable of contracting another marriage during the subsistence of this marriage and also if one has sexual intercourse outside the marriage one commits adultery. Basing on Hyde v. Hyde1, marriage is monogamous and during its subsistence one can not purport to enter another relationship. 2. The legal fiction of one person. At common law one of the principles of marriage was that when parties get married the personality of husband and wife were fused into one hence there could be no civil action between the spouses for they were one. Similarly, spouses could not be jointly charged. According to Blackstone, writing in about 1765, the husband and wife were one person in law: the legal existence of the woman was suspended and incorporated into the personality of her husband. She could not make a contract except as her husband's agent, and although she could commit torts her husband remained jointly liable. A husband could not make a legal gift to his wife, nor enter into a contract with her; however, he could leave property to her in his will, because that would not take effect until after the marriage was ended by his death. The husband was responsible for his wife's debts, whether contracted during the marriage or before, and if she committed any crime in his presence it was presumed that she did so under his direction. As late as 1840, Coleridge J in Re Cochrane2 said there could be no doubt that "the husband hath by law power and dominion over his wife and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner". According to Balfour v. Balfour3, a domestic arrangement can‘t be taken as a binding contract. This legal fiction or fusion was a reality which subsequently 1

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[1861-73] All ER Rep 175 8 Dow PC 630 [1919] 2 KB 571

led to harsh results especially in regard to women‘s property rights. Today this aspect in not very important as spouses can act very independently and even sue each other. The law has changed since then, largely due to the growing recognition that women (including married women) are individuals with minds and rights of their own. Husbands no longer have disciplinary rights over their wives, and husbands and wives are separate legal persons who can make contracts with one another, sue one another, commit crimes against one another, and so on. In Uganda v. Chanda4, a married woman could own property separately from her husband and could sue him over her property. In Moonlight Sengooba v Administrator General5, the woman was allowed to inherit insurance benefits arising out of a policy taken out by her husband. The position of one party is also apparent in rules of evidence as depicted in Uganda v. Kato6, where a woman gave evidence against a man she was cohabiting with. In practice a spouse is not a compellable witness in criminal cases. 3.The rights of the wife to use the husband name. A marriage gives the wife the right to use the husband‘s name if she so wishes but this is not obligatory. It was thus stated in Fendal v.Goldsmith7, while marriage confers a right to the wife to use her husband’s name, she can not be forced to do so but if she desires she can use it. In this case the parties obtained a decree absolute and then remarried. The womanused the husbands name for the publication of banns. She later wanted to use this for the nullification of the marriage. The case made a composition that while marriage offered to a wife the right to her husband‘s name she is under no duty to do so. However if she wishes, she may adopt it without swearing a deed pool. Marriage confers a name upon a woman which becomes her actual name and that she can only obtain another by reputation. A woman may also retain he former husband name after termination of the marriage and the husband has no right to restrain her from using it unless she

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(1977) HCB 11

is using it for a fraudulent purpose. In Cowley vs Cowley8, the wife succeeded in a decree of dissolution of the marriage but went on to use the husbands name. The husband sued for an injunction restraining the wife from the continued use of his name. Court held inter alia that a man has no such property in his name as to entitle him to prevent a woman not his wife claiming to be such unless she does so maliciously. A wife commonly takes her husband's surname when she marries, though a number of women nowadays retain their own surname for professional purposes and a few do so in private life as well. In Davies v Lowndes9, CPA testator T left much of his property to D on condition that D change his name to Selby. T's relations brought an action against D, arguing inter alia that he had not properly changed his name and was not entitled to the property. Tindal CJ said there was no need for any special formality for a man to change his name: a man may, if he pleases, and it is not for any fraudulent purpose, take a name and work his way in the world with his new name as best he can. In D v B (Child: surname) ,A pregnant woman left her husband and went to live with another man; she executed a deed poll adopting his surname for herself and any child of hers. When the child was born she registered its birth under the new surname B, but declared D to be the natural father. Following the divorce a year later, D sought and was granted a court order requiring inter alia that the child be known by his surname rather than B's. Allowing the mother's appeal, Ormrod LJ said it was in the child's best interests that it should be known by the surname of the family unit to which it belonged. Obiter, he referred to the convention that a married woman takes her husband's surname, but stressed that it was no more than that. 4. The wife acquires the domicile of her husband. The wife acquires the domicile of the husband as depicted in Joy Kigundu v. Aggrey Awori10, the court observed that during the lifetime of the husband, the wife can not acquire domicile of her own from that of her husband because the domicile of a married woman depends on her husband‘s domicile and since 8 [1900] P 305 9 (1835) 131 ER 1247 10

her husbands domicile was in Kenya her domicile also was in Kenya and therefore she could not sustain divorce proceedings. 5. Presumption of legitimacy of children. All children born during a subsisting marriage, will be presumed to have been fathered by the husband. However, this presumption can be rebutted if one shows overwhelming evidence to the contrary in the following circumstances; a) Where a husband was temporarily or permanently impotent at the time of the conception. b) Absence of the husband for a reasonably long time. Preston Jones Vs Preston Jones11 where the husband had put it clearly that a child born 360 days after a particular coitus wasn‘t his legitimate child and his appeal was allowed. Where it can be shown that the child was born after an abnormally long period of time between the parties. For children born after a decree of divorces, there is a presumption that conceptions took place during the subsistence of the marriage and the husband is the father of the child but this presumption can be rebutted. In Knowles vs Knowles12 The child was born after a decree was made absolute. According to evidence a decree, the child could have been conceived before the decree was made absolute because the husband and wife continued to have sexual intercourse ever after the decree nisi. The court held that in view of the fact that the “A decree nisi does not hinder cohabitation, but rather tends to promote it. Husband had access to his wife and the time the child was conceived, it presumption of legitimacy operated in favour of presuming that conception took place while marriage was still subsisting and the husband was the father of the child. In Re Over bury13, a child was born during the subsistence of a marriage which was terminated by the husband‘s death but the mother was already in a new marriage. After the death of the child an application was lodged to determine the child‘s paternity it was lodged to 11 [1956] 1 All ER 124 12[1962] 1 ALL ER 13 [1955] CH 122

determine the child‘s paternity. It was held that there was no evidence that the mother had committed adultery during the first marriage and so the child belonged to the first husband. c) If it is shown that intercourse was so unlikely that it would be concluded on a balance of probabilities that no intercourse took place. d) Where it is shown that the wife is adulterous but this does not per se rebut the presumption but only shows who the father may be. e) Where it is shown that the wife was pregnant at the time at the time of the marriage and the husband had not had sex with her. No presumption arises where a child is conceived when the husband and wife are judicially separated but this rule does not apply where they simply entered into a separation agreement (this is where the husband and wife agree to separate and sign a separation agreement without first going to court). In Ettenfield vs Ettenfield14, The husband separated with the wife under a separation deed/ Agreement. They continued living in the same town and during the separation the woman became pregnant and subsequently gave birth and then asserted that the matrimonial relationship had been resumed in Aug 1932 which the husband denied. In Uganda, the law does not make a distinction between legitimate and illegitimate children when it comes to inheritance. Therefore in Kajubi v. Kabali15, although there was no valid marriage, the children were entitled to inherit from their deceased father. 6. The right to consortium or conjugal rights. Consortium is the right to the company, society and affection of a spouse in any matrimonial relationship. Under the old common law rules, it was the husband who had a right to the wife‘s consortium but the wife had no such right to her husband‘s consortium. What she had was a duty to offer her companionship and services to the husband. Under the old common law rules the husband also had the right to chastise his wife if she failed in her duties including confining her within the house. As late as 1840, Coleridge J in Re Cochrane16 said there could be no doubt that "the husband hath by law power

14[1740] I ALL ER 293 15 16 Supra at 2

and dominion over his wife and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner". Consortium refers to living together or a bundle of rights which arises or accrues to the husband or wife and all other incidences that flow from the relationship. Some of the rights may be precisely dependent while others may not. Consortium embraces the right to companionship, love, comfort, mutual services, sexual intercourse, affections and others. However, the enjoyment of these rights may be qualified depending on the circumstances, that is, the rights are not absolute. In Aremezi vs Rideway17 it was stated by Hilburg J. that; “I am quite sure that no young woman when she accepts a proposal of marriage and a contract is formed could be satisfied if she were told that all the young man is undertaking by promise is to go through a form of ceremony with her. What the parties intend is an exchange of mutual promises to becomes the other’s spouse that is husband and wife and all that it should entail”. In Place vs Scarle18, court held that both husband and wife have a right to consortium and a right to each other and each of them has a right against any person who abuses that right without noble cause. The right may depend on age, health, social and financial standing of the parties. In Margan vs Morgan19, where court held that an elderly had married only for companionship. In A.B vs C.D20, the wife was complaining of severe pains during sex, but the husband persisted. It was held that spouses should not use force in order to exercise their conjugal rights. The use of extra judicial means in exercising conjugal rights is prohibited. The right to live together.` While the parties have a right to live together, it is not mandatory that they live together at all times. In circumstances of living apart, they must share the intention of being married. The spouses cannot contract themselves out of this duty for such agreements are 17[1949] ALL ER 664 18[1932] 2 ALL ER 497 19 (1959) All ER 53 20(1955) 28 K.L.R 210

considered to be outside public policy and therefore not enforceable. In Brodie vs Brodie21, A spouse cannot however, be compelled against her/his will to stay with the husband or wife or to resume cohabitation In R v Jackson22,

a wife W left her

husband H for another man; H kidnapped W as she was leaving church and took her home. Reversing the Divisional Court, the Court of Appeal overruled Cochrane and granted habeas corpus, saying H had no right to detain W against her will. If a husband ever had the legal right to beat his wife, said Lord Halsbury LJ obiter, that entitlement was now obsolete. Both parties have a right to consortium and both can sue anyone who destroys this right. In Aremezi v Ridgway23, while in Greece, an English naval officer entered into a contract of marriage with a Greek girl, resident in Athens. Later the contract was renewed in England, with the intention that the new contract should be in substitution for the previous one. The marriage was to take place in Athens but the parties intended to make their matrimonial home in England. In an action for breach of promise of marriage: Per Hilbery J: while it is true that this peculiar type of contract—the exchange of mutual promises to marry ends, so far as legal enforcement is concerned, on the performance of the marriage ceremony, none the less the performance which the parties contemplated at the time they exchange mutual promises is not exhausted by the performance of a mere ceremony. No young woman when she accepts a proposal of marriage and a contract is formed, would be satisfied if she were told that all the young man is undertaking by the promise is to go through a form or a ceremony with her. What the parties intend is an exchange of mutual promises to become one another’s spouse; to become husband and wife with all that that should entail. In Newton v. Handy24, it was held that a married woman has a right to consortium from the husband and can recover damages from anyone who violates this. Section 20 of Divorce Act envisages restitution of conjugal rights. It thus provides that if the husband or wife without reasonable excuse withdraws from the society of the other, the aggrieved party may petition the court for restitution of conjugal rights. 21(1917) P 27 22[1891] 1 QB 671, CA 23 Supra at 17 24(1933) 1 49 LT 165

However it is important to note that a court can not order specific performance apparently because you can‘t supervise people having sex or coerce them into the same. If there is a reasonable excuse as to why a party has left, then the court can order separation. In R v. Jackson25, the husband got a decree of restitution of conjugal rights and the wife refused to comply so he abducted her, the state set out her case to secure her release and the court held that the husband could not keep her in confinement against her will. Each partner has a right to reasonable sexual intercourse with the other: this does not entitle a husband (or a wife) to have intercourse by force, but unreasonable refusal (or demands unreasonable in their frequency or nature) could well be grounds for annulment or divorce. In Brodie v Brodie26, Horridge J W petitioned for an order for restitution of her conjugal rights (an action no longer available since 1970). In reply, H pled an agreement made before the marriage (which had taken place only because W was already pregnant by H) that the parties would permanently live apart. The judge, granting W the order she sought, said such an agreement was contrary to public policy and could not be a defence. In R v R (Rape: marital exemption), D and his wife were living apart, but not divorced; the wife had returned to her parents' home. D forced his way into the house and then forced his wife to have sex with him. His conviction for rape was upheld by the Court of Appeal and the House of Lords. Per Lord Keith, The status of women (and particularly of married women) has changed beyond all recognition since Hale's proposition was first enunciated, and in modern times any reasonable person must regard that proposition as quite unacceptable. The supposed marital exception in rape forms no part of the law of England today. However, the aggrieved party has a right to apply to court for restitution of conjugal rights. This is also provided for under Section 20 of the Divorce Act, when the spouse has unreasonably withdrawn. The withdrawal of conjugal rights must be unreasonable and the other party must have no defence. In Powell vs Powell27, a husband moved to the self contained part of the house and denied his wife 25 Supra at 22 26 Supra at 21 27

access thereto. The parties were still under the same roof but the husband avoided the wife‘s society and their only meetings were the morning greeting. Court ordered for the restitution of the conjugal rights on the wife‘s application. The successful party is not entitled to use extra judicial means of to enforce his /her rights R vs Jackson28, where a husband obtained the decree nisi for restitution of conjugal rights and his wife refused to comply. He then abducted her and confined her in a house. Court held that not withstanding her refusal to live in the same house as him the husband was not entitled to keep her in confinement for the purpose of enforcing the decree for restitution by her of his conjugal rights. Court granted her an order for habeaus corpus to secure her release. In Nanda vs Nanda (1967) ALL ER 401 the wife whose husband had deserted her obtained a decree for restitution of conjugal rights and she later went to live against his will in a flat in which he was living with another woman, with their two children. Court held that she had no right to trespass on her husband‘s property which wasn‘t their matrimonial home and he was entitled to an injunction to restrain her .

If a party refused to return, then he/she will be held to be in desertion which may constitute a ground for judicial separation for divorce. There are certain circumstances where conjugal rights or rights to consortium may be lost or suspended and these are: (i) Where there in judicial separation that is, where court has issued an order for the parties to live separately. (ii) If there is a separation agreement where parties have agreed to live separately and the agreement contains a non molestation clause. (iii) Where one of the parties has committed a matrimonial offence for example adultery, and desertion. The guilty party will be deprived of the consortium of the other. (iv) Where courts have pronounced a decree nisi.

There is a cause of action, against anyone who unlawfully interferes with the spouse right to consortium and these can be in 3 categories.

28 Supra at 22

1. Where a person entices the spouse to leave the marriage without any legal justification. At common law this would give a ground for an action in enticement. In Place vs Searle29, where right to consortium of his wife and vice versa and each has a cause of action against the third party who without justification destroys that consortium. In Newton vs Handy30, where court held that a married woman has a right to consortium her husband and can recover damages from any one who violates that right. However, for her to do so, she has to prove that the co-defendant enticed her husband and persuaded him to stop cohabiting with her. Therefore for an action of enticement to be maintainable, the following aspects must exist: (i) The plaintiff must prove the intention by the defendant to induce the other party to spouse go away. (ii) The de...