Statutes
| Date | 01 November 1962 |
| Published date | 01 November 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02226.x |
STATUTES
LAW
REPOEM
(HUSBAND
AND
WIFE)
ACT,
1962
SOMETIMES the temptation to use
a
clichC is irresistible. The old
saying that libraries become wastepaper through
a
stroke of the
pen of the legislator can hardly ever have been applied with greater
justification than in connection with this Act. Its effect can
be
stated very shortly: the ancient principles of the common law,
codified with an important modification in section
12
of the Married
Women's Property Act,
1882,
according to which husband and wife
are incapable
of
committing
a
tort against each other and incapable
of
suing each other in tort, have been abolished. This abolition is
in practice subject to two exceptions, both
of
which may be of very
great importance. The first of these exceptions is presumably
intended to refer to family disputes the character
of
which makes
it
inopportune that they should be dealt with by a common law
court: the court has
a
general power to stay proceedings in court
brought by one of the spouses against the other during the subsis-
tence of the marriage
if
it
appears to the court that
no
substantial
benefit would accrue to either spouse from the continuation
of
the
proceedings. The second exception refers to disputes concerning
the title to or the possession of property. Such disputes can
of
course be settled by invoking the discretion of the court under
section
17
of
the Married Women's Property Act,
1882.
Under the
new Act the court has a twofold discretion.
It
can in the event
of
tort proceedings being brought raising a question or questions which
could more conveniently be disposed of
on
an application under
section
17
stay the proceedings.
It
can also in the tort proceedings
themselves exercise any power which
it
could have exercised
on
an
application under section
17
or give such directions as it thinks fit
for the disposal under section
17
of
any question which has arisen
in the proceedings.
It
is further provided that rules of court will be
made requiring the court to consider at an early stage of the
proceedings whether the power to stay should or should not
he
exercised, and similar rules under the County
Courts
Act,
1959,
may confer on the Registrar jurisdiction
to
exercise the power
to
stay the proceedings. The Act also contains a section which
introduces a similar change
in
the law
of
Scotland.
This statute is the result
of
the Ninth Report of the Law Reform
Committee (Cmnd.
1268).'
The statute,
as
it
emerged from the
House of Lords, differs from the bill passed by the House of Com-
mons in one important respect: it was originally intended that
where section
17
could have been invoked, the mutual power
of
the
1
On
thin
nee
(L
Note
by
0.
M.
Stone
in
(1961)
24
M.L.R.
481.
695
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