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What is a Marriage?

Updated on March 20, 2012

Under English law, the rights and duties involved in marriage are now for the most part unenforceable by direct action in the courts. Although there is a duty to cohabit, the old decree for restitution of conjugal rights has been abolished. Furthermore neither one party nor the other has the final say as to where the matrimonial home should be. The law takes notice of the behavior of the parties only in actions for maintenance or for a separation order in the magistrates' courts, or in matrimonial proceedings before the High Court. Thus the reasonableness of the behavior of either party is in question when determining issues of desertion, constructive desertion, or of unreasonable behavior for the purposes of divorce.

Rights of action against a third party for interference with marital rights are now vestigial except where the loss is specifically financial. A husband can sue for loss of consortium on injury to the wife. Otherwise either spouse may claim for loss of earnings and other costs occasioned by injury to the other. A dependent can sue for loss of expected financial support from a spouse who dies from a third party's tort.

Specific rights and obligations of the husband. A husband owes a duty to maintain his wife but the doctrine of agency, whereby a wife without adequate funds to maintain herself and the children could pledge her husband's credit for necessities such as food and clothing, has now been abolished.

In the absence of contrary agreement, any money saved from any allowance made by the husband to the wife for housekeeping or for similar purposes and property acquired with such money belongs to the spouses equally and not, as was previously the case, to the husband alone.

A husband is not liable on any contracts made without his authority by his wife, who can herself be made bankrupt by unpaid creditors. Furthermore, he is not liable for an unlawful act committed by his wife unless she was acting as his agent or servant. A husband is liable for his wife's income tax unless they are separately assessed by the Inland Revenue.

Rights of action against each other. Until recently, apart from certain exceptions, neither spouse was able to bring tortuous or criminal actions against the other, but now these exceptions have been abolished with the result that each of the parties to a marriage has the same rights of action against the other as if they were not married.

However, the court may stay an action in tort brought during the marriage if no substantial benefit would accrue to either party if the proceedings were continued. Property rights. Since the Married Woman's Property Act 1882, a married woman enjoys the same rights over her own property as a femme sole. Disputes between the spouses as to ownership or possession of property may be determined by the court. The rights of a spouse who has no proprietary, contractual, or statutory right to occupy the matrimonial home are now protected by the Matrimonial Homes Act 1967. This act protects the spouse without an interest in the property by giving such a spouse, if in occupation, a right not to be evicted or excluded from the house or any part of it except with leave of the court, and, if not in occupation, a right to enter and occupy the house. These rights are considered to be a charge on the other spouse's estate or interest in the property, and as such should be registered under the Land Charges Act 1972.

Miscellaneous Matters

Neither spouse can be compelled to give evidence against the other in criminal proceedings, but by the Criminal Evidence Act 1896, may testify on behalf of the other if requested to do so by the accused spouse. In civil proceedings, however, both husband and wife can, generally, be compelled to give evidence against each other. Under the Civil Evidence Act 1968 a husband or wife is now a compellable witness on the question of whether or not intercourse took place between them.

The Scots law of husband and wife is not now markedly dissimilar from the English. The wife has a separate estate in her own moveables, and the rents and profits of her heritable property belong to her. An act of 1920 provided that a married woman should with regard to her estate have the same powers of disposal as if she were unmarried. The husband's right of administration was abolished and his consent to his wife's disposal of her heritable estate became no longer necessary. Further, the husband's rights of succession to his wife's moveable estate are co-extensive with her rights in his and similarly cannot be defeated.


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