Inconsistencies and Injustices in the Law of Husband and Wife
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb00228.x |
| Author | O. Kahn‐Freund |
| Published date | 01 April 1952 |
| Date | 01 April 1952 |
THE
MODERN LAW REVIEW
~~~ ~~
Volume
15
April
1952
No.
2
IN,CONSISTENCIES AND INJUSTICES
IN
THB
LAW
OF
I-IIJSBAND AND
WIFE
“THE
state of the law today as to the relations of husband and
wife sccms to me to be fraught with inconsistency and injustice.”
The words were spoken in
1030.
Four years later, in January,
1034,
the Lord Chancellor, Lord Sankey, appointed the Law
Revision Committee, and one of its terms
of
reference was “the
liability of the husband
for
the torts of the wife
.
.
.
and the
liability of a mdrried woman in tort and in contract.
.
. .”
Of
the many
cc
injustices
))
and
cc
inconsistencies
))
of this branch
of
the law only two wcre thus subjected to the scrutiny of the
Committee. Its task was to examine thc effect of two decisions:
Edwards
v.
Porter2
and
Scott
v.
~llorley.~
The major problems
of the general effect of marriagc on the property
of
the spouses
and on their mutual relations in matters such as property, contract
and tort
were
not included in the terms of reference, nor was the
equally important question of the position
nf
outsiders, and in
particular
of
creditors, with regard to property transactions
between husband and wife. Ncvcrthcless the recommendations
of.
the Committee“ and the Law Reform (Married Women and
Tort-
fcasors) Act,
1085,
Part
I,
which carried them into effect,’con-
stitutcd a frontal attack
on
some of the fundamental problems
of
the law of husband and wifc. The Act abandoned the traditional
method5 of dealing with the question of marricd women’s
property by extending the equitable conception of the
cc
separate
estate.” For the first time it gave effect to the three basic
principles of equality of status and capacity,
of
separation of
property, and of separation of liabilities. Its
‘‘
dominant intcn-
tion
))
was indeed “clcar beyond all doubt.”
It
was
cc
to effect
1
Per
McCardie J. in
GottliJe
v.
Edelslon
[1930] 2
K.B.
378, at
p.
381.
2
[1925] A.C.
1.
3
(1887)
20
Q.B.D.
120.
4
Law Revision Committee Pourlh Interim Report, Cmd. 4770/1934,
No.
23,
5
This method was employed in the Married Womcn’s Propcrty Acts
of
1870
and
of
1882, but the modern mcthod
was
used in
8.
21
of
the
Matrimonial Causes
Act, 1867, which is still in force, and in
8.
26,
which bccame
8.
194
of
the
Judicature Act, 1925, and the last vestiges
of
which can
now
be found
in
8.
21
of
the hlatrimoninl Causes Act, 1950.
p.
!a.
133
VOL.
15
9
184
THE
MODERN LAW REVIEW
VOL.
16
a drastic reform of our law in a branch where there has been too
much legal fiction and too much technicality of legal procedure.”
Whether
it
succeeded in making
“
a
clean sweep
of
the old fiction
of our common law that a woman on marrying became merged in
the personality of her husband and ceased to be a fully qualified
and separate human person,” is
a
different question. The Act
made no attempt to reform the law on mutual dealings and
liabilities between husband and wife. On the contrary,
it
expressly
reaffirmed one of the basic statutory provisions in this matter which
was itself an outcome of the doctrine
of
“unity of husband and
wife,” and in the law of evidence, in criminal law, in the conflict
of
laws, and in some branches of the law of
tort
that doctrine
continues to have its important consequences to this day.9 In
spite of appearances, therefore, thc Act of
1985
is not
a
codification
of the law of husband and wifc,
it
is not even a codification of the
“
property aspect
)’
of this,branch of the law.
It
is no more than
an unusually radical amendment of certain rules of the common
law.
It
has left in being many of the anomplies
of
which McCardie
J.
complained more than twenty years ago, ‘and
it
is the object
o$
this paper to deal with three of them: those concerning the mutual
liabilities
of
husband and wife, especially in tort, those affecting the
position of the wife with regard to savings, and those encroaching
upon the rights of creditors in connection with gifts and other
transfers of property between the spouses.
,
Before these matters can
be
discussed, it
is
however necessary
to say
n
word about a point
of
principle which must be indicated
but which cannot
be
fully annlysed in this article. The two
rules
of equality of status and capacity and of separation of property
between the spouses are linked in the Act of
1035,
as, in a way,
they were linked in its predecessor, the Married Women’s Property
Act,
1882.
The two
rules are quite distinct.
A
system of equality between the legal
status of married women and that of unmarried women and
of
men
is compatible with a matrimonial regime of joint property
of
the
spouses, as in France,’O
or
of
the husband’s right to enjoy the
income of, and his power and duty
tb
administer, the wife’s
property, as in Germany.” In this country the common law
0
Per
Scott
Ld.
in
Barber
v.
Pigden
[lo371
1
K.B.
G64;
[lo371 1
All
E.R.
115,
This is no more than an historical accident.
125.
[1946] 2
All
E.R.
47,
GO.
the
1935
Act.
7
Per
Scott
L.J.,
ibid.,
and, pimilorly, in
Rees
V.
Htcghes
[104G]
K.B.
617;
8
Married Women’s Property Act,
1882,
s.
12;
see
s.
1
and both Schedules
of
9
See Qlanville Williams, “‘The Legal Unity
of
Husband and
Wife
”
(1047)
10
M.L.R.
16.
10,
Code
Ciail,
art.
1401,
but it docs not extend
to
land belonging
to
either spouse
at the time
of
tho-marriage
or
subsequently acquired by gift
or
inheritance,
art.
1404, 1405.
11
Buergesliclres
Gesetzbuch,
para.
1363;
for
the most important exceptions ‘see
paras.
1366,
1367.
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