Inconsistencies And Injustices In The Law Of Husband And Wife
| Date | 01 January 1953 |
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02764.x |
| Author | O. Kahn‐Freund |
| Published date | 01 January 1953 |
INCONSISTENCIES AND INJUSTICES
IN
THE
LAW
OF
HUSBAND AND WIFE
IN
the previous article under this title
it
was submitted that the
survival of the fictitious legal
“
unity
”
of husband and wife is apt
to produce results which may
be
unfair not only
to
the spouses
themselves but also
to
third parties, especially in the law of tort.
An
attempt was made
to
distinguish between legal rules derived
from the fiction that husband and wife
are
one person
in
the eye
of
the law and principles based
on
the
fact
that the household is
a
community of life. One may, perhaps, say that at present the law
of husband and wife is an amalgam of three elements.
In
the
iht
place there is the fundamental principle of separation of property
embodied
in
the Law Reform (Married Women and Tortfeasors)
Act,
1935.
Secondly, a number of rules, partly formulated by the
courts and partly by statute, are to
be
considered as vestiges of the
old fiction of unity of personality, as,
e.g.,
the doctrine of the unity
of domicile and section
12
of the Married Women’s Property Act,
1882.
Finally, Parliament, the courts and administrative tribunals
have, in some important respects, taken account of
the
fact
that,
despite the rule of separation of property, the consortium
of
husband and wife is of necessity based on the common enjoyment
of worldly possessions destined to the use of the family and that the
categories of the law of property and of contract are not well
adapted to the regulation of the life of this community. Section
17
of the Act of
1882,
the principle of
BaEfour
v.
BaZfo~r,~
and the
doctrine of the “family fund
”
developed by social insurance
tribunals’ may be said to belong to this
third
category of norms.
Some of the inconsistencies
of
the present law arise from the
co-existence
of
these three types
of
legal norms, and many of
its
injustices from the inability of the courts to confine the rule of
separation
of
property to its legitimate province, or,
if
one likes,
to attach to this principle of separation a gloss by way of what
Lord Justice Denning
’
bas called a
“
new equity.” The purpose
of the present article is to demonstrate this by way of two
examples: the mutual rights of the spouses with regard to
household savings and the position of creditors
visd-vis
household
property.
1
Modern
Leu,
Reoiew,
vol.
15,
p.
133,
April,
1952.
2
[1919]
2
K.B.
671.
4
In
a
recent
broadcast
on the Third Programme
of
the
B.B.C.
See
below,
pp.
47,
48,
and
Part
N
of
thls
Article.
34
JM.
igaa
TEE
LAW
OF
HUSBAND
AND
WIFE
85
I1
EOUSEHOLD
SAVINGS
Take this very typical and frequent situation: the husband is
a
wage earner or small business man who gives
his
wife a weekly
household allowance from which she is supposed to defray the
expenses of the household, often including the rent, her personal
expenses and those for the children. Through
thrift
and industry
she manages to save part of this money, and, with or without her
husband’s knowledge, accumulates
it
on
a bank or savings bank
account which is likely
to
be opened in her name. Subsequently
there is a quarrel between the spouses, the husband learns of the
existence of the account
(if
he had not known
it
all the time) and
claims
it
as his
own.
As
the law stands today, there is
no
doubt
at all that he is entitled
to
do
SO.^
This,
it
is submitted, is a
gross
injustice and the‘writer can see
no
justification whatever for
this
legal rule. Emotional abhorrence of a legal principle, however,
carries
us
nowhere. We must
see
how
it
originated,
on
what
arguments
it
is based, whether anything can be done
to
change the
law without legislation, and,
if
not,
on
what lines legislation might
possibly be developed..
As
far
as the present writer is aware, the rule had its
origin
in
a dictum of Page-Wood
V.-C.
in
1856.
The facts
in
Barrack
v.
M’CzlUochs
were that Barrack brought a suit
in
equity under the
statute
18
Eliz.
5
concerning certain transactions by a man called
Mariner which were alleged to constitute an embezzlement
of
Barrack’s money. Some of this money had been handed to Mariner
(who was a stockbroker’s clerk) by
lKrs.
Barrack for investment.
One of the
hzinor
points in the case was whether Barrack, the
plaintiff, was able to claim as his
own
the money thus (seemingly)
invested by his wife.
On
this point, Page-Wood
V.-C.
said
‘
:
‘‘
.
.
.
the money given by
Mrs.
Barrack to Mariner
was
her
husband’s money.
It
appears that she took
it
out of his
business, and received
it
partiy from the trustees, who were
appointed for the benefit of her husband’s creditors. There
is
no evidence that the husband ever concurred in any act by
which his wife acquired property for her separate use.
I
must, therefore, assume that the money which she gave
to
Mariner to
be
invested, without the privity of her husband,
was money which belonged to him.
It
is not like the savings
of a married woman out of her separate estate. Any money
given to her by her husband for household purposes, or
for
dress, or the like, and applied by her
in
making investments
in her own name would belong to her husband.”
Of course it would-in
1856,
i.e.,
prior
to
the Married Women’s
5
Hoddinott
v.
Hoddinoft
[1949]
‘2
K.B.
a.
3
K.
&
J.
110.
At
p.
114.
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