CHANGES IN THE LAW OF HUSBAND AND WIFE.

THE

HE phrase 'The swing of the pendulum' becomes nauseating by repetition when there is any prospect of a General Election: but it is such an easy metaphor to indicate the change from one extreme to another, that it is not likely to fall into disuse. Pendulums oscillate in accordance with their length, and tendencies have varying periods before they take practical effect. That which turns public opinion from one political party to another may have an amplitude of a few years; but there are many slower movements hardly perceptible until observant persons find that by degrees and almost unnoticed a great displacement has been effected. In legal matters there are two or three wellmarked examples, such as the law relating to debtor and creditor. Formerly debtors used to find themselves in prison; now one with a good working knowledge of the Bankruptcy laws has been known to make a fortune out of his creditors, and it seems likely from such a climax that any further change will be in the direction of greater stringency, especially in large bankruptcies. But perhaps the best instance of oscillation is the law of Husband and Wife, the period being about a century. A century ago a wife's legal rights were few and inadequate; but now in certain circumstances a husband may have none whatever. Unjust as the old law might have been, it made the wife's helplessness the means to an end; the present law is the effect of a series of independent experiments to which a resurrected Solon might apply the word 'chaos' without being misunderstood by Englishmen.

By the law of a century ago the husband took the wife's property, and she was practically bound to live with him; and the two first victories of the wife in the legal arena seem to have been the recognition of deeds of separation in the Common Law Courts and in Equity, and the device of the restraint on anticipation when it appeared from cases like Pybus v. Smith, 3 Bro. C. C. 339 (1791), that the separate use unrestrained did not fulfil its purpose. The series of decisions by which the enforceable right of separation was recognized well illustrates the struggle between the old principle and the new. The latter registered a victory so long ago as 1792 in Guth v. Guth, 3 Bro. C. C. 614, in which Sir R. P. Arden, the Master of the Rolls, held that the covenant for separation

was enforceable; but the time was hardly ripe, and the later decisions of Legard v. Johnson, 3 Ves. 352 (1797), and St. John v. St. John, 11 Ves. 525 (1805), much weakened this authority. In the last case Lord Eldon declared it is impossible specifically to perform such an agreement,' and suggested that 'after the sacred contract they (the husband and wife) should feel it to be their mutual interest to improve their tempers.' However, in Worrall v. Jacob, 3 Merivale 256 (1817), the simple device of the trustee for the wife practically restores the power of separation, and the principle is recognized and established in 1848 in the case of Wilson v. Wilson, 1 H. L. C. 538, 73 R. R. 158.

Thus before the middle of the last century the restraint on anticipation' had become common form in marriage settlements, securing the wife's income to herself, and the wedge of the separation deed had been driven firmly into the old ecclesiastical fabric. A still fiercer blow was struck when the first Divorce Act was passed in 1857.

The former private Divorce Acts, by which a rich man could get a divorce a vinculo and marry again, seemed to give the change a reasonable basis, making the remedy for unfaithfulness independent of wealth; but it entirely revolutionized the law, making a very unlikely contingency in the cases of certain wellto-do couples a necessary implication in all marriages. And moreover, although it is still assumed to be unlawful to contemplate a future separation, the law with a curious inconsistency forbids parties to enter into an indissoluble union, for there is no provision in the Divorce laws to enable spouses to 'contract out' of their operation 1.

Several amending Acts have been passed since that of 1857, principally for improving the machinery of the Court, and reported decisions show the practice; the power to vary settlements was perhaps the most important innovation until 1884. But s. 21 of the principal Act, making lawful the Protection order,' was a step in the direction of curbing the husband's dominion over his wife's unsettled property, followed some time after by the Married Women's Property Act of 1870, which still further enlarged the wife's powers in this direction, and diminished the husband's.

Up to this point the latter had, perhaps, not very much reason to complain of the way the law had modified his rights; the ' restraint on anticipation,' the equity to a settlement,' and the Act

1 [If the incidents of the married state could be regulated at the will of the parties, there would be no need for any Divorce Act at all: if they could fix the term of marriage for life to the exclusion of any interference from the Court, why not for ten years, or five, or one ?-ED.]

of 1870 merely put a check on inordinate selfishness, and the recognition of separation and the Divorce Acts in theory held an even balance between the sexes, though in practice the separated wife is a more privileged person than the husband who maintains her without the right to her society. But the pendulum at the bottom of the swing was not at rest, and the further encroachments, though sometimes in logical sequence, nearly all tended to put the husband in an unfair position.

From 1870 to 1882 his rights were not subject to any further onslaught of a serious nature; but the conversion of the 'restraint on anticipation' into a possible engine of fraud on a married woman's creditors was foreshadowed in 1878 by the case of Stanley v. Stanley, 7 Ch. D. 589. The effect of this was to protect a married woman who cheated her creditors, on the ground that she was at all costs to be protected against her husband cheating her.

It must be admitted that this was to treat her as a person fitted for little or no responsibility; nevertheless four years afterwards the Married Women's Property Act of 1882 was passed, giving her entire control over her property to the exclusion of her husband. This Act did not relieve him of the burden of maintaining her, which was in effect a right against his earnings and property, and thus the wife could enjoy her own property and part of the husband's, and he was left only with the remainder of his own.

In 1883 the unhappy domestic affairs of Mr. and Mrs. Weldon culminated in the latter serving her husband with a writ for libel, and simultaneously claiming the right to his society; his offer to provide her with a house, servants, and allowance was declined in the absence of his company. The Court held that he was in contempt of a previous decree for the restitution of conjugal rights, and liable to go to prison unless he accepted her invitation.

This case was deemed a hard one, and, ignoring the old adage, the legislature passed the Matrimonial Causes Act of 1884, enjoining that no one should be sent to prison for disobeying such a decree. The case of Mr. Weldon went to prove that it was sometimes unjust to send a husband to prison for this technical contempt; it was assumed that it would therefore always be unjust to send a wife to prison in similar circumstances.

By a decision in 1886, Seroka v. Kattenburg, 17 Q. B. D. 177, it was held by Mathew and A. L. Smith JJ., that the husband, notwithstanding that he took no interest in his wife's property, remained liable for her torts. Under the old law, when he took her property, this liability followed as a matter of logic and equity; after the Act of 1882, though the judges might not have had an option in the matter, the result of the decision (though

in point of law it stands confirmed by the Court of Appeal in Earle v. Kingscote [1900] 2 Ch. 585) seems absurd. By a handful of insulting postcards a spiteful woman might now ruin her husband without danger to herself civilly, if her income was properly settled and restrained.

Underlying this decision and the old law on which it was based was doubtless the notion that the husband had some sort of legal control over his wife; and at this time the old case of Re Cochrane (8 Dowl. 630, 1840) stood to show that he was entitled in the last resort to enforce this control physically (it is to be observed that after 1882, when he had ceased to have any interest in her property, this was the only way he could enforce it). But a few years afterwards, in 1891, independently and within a week, two cases were decided which finally destroyed the last vestige of the husband's authority. By the 'Clitheroe case,' R. v. Jackson [1891] 1 Q. B. 671, it was decided, overruling Re Cochrane, that a husband had no right to restrain his wife's movements, unless, possibly, she was about to elope with another man; and in the case of Michell v. Michell [1891] P. 208, the Court of Appeal (Lindley, Bowen, and Kay L.JJ.) decided, reversing the decision of the late Lord St. Helier in the Divorce Court, that a husband who has obtained a decree for the restitution of conjugal rights cannot enforce it under the Divorce Acts against a wife's restrained income.

The decision in R. v. Jackson may have been inevitable after the Act of 1884, and that in Michell v. Michell also obligatory on judges unable to cope with the overgrown child of their predecessors, the 'restraint on anticipation'; but the net result remains that a husband's decree for restitution is generally worthless, and the Court which has no option but to pronounce it is stultified every time it does so. If a Court finds that a woman has left her husband against his will, the natural inference is that he has no control over her; but directly a question as to the 'restraint' is raised, the judges have to assume that, unless they protect her, he will at once persuade or coerce her out of her money. An English wife has therefore all the privileges of a man or a single woman as regards her person and unsettled property, and the protection accorded to a child as regards her settled property.

This anomalous situation might well have been dealt with by the Married Women's Property Act of 1893; but the first section of this Act expressly preserves the 'restraint' inviolate, and the effect of it, even after the husband's death, is well seen in such cases as the recent one of Brown v. Dimbleby [1904] 1 K. B. 28, where the 'restraint' operated in favour of a widow, because the debt had been incurred during the husband's lifetime.

However, s. 2 of this Act shows that one class of married women had managed to stretch the restraint to breaking point, and the 'lady litigant' cannot now reckon that it will carry her immune through the ordinary rule that an unsuccessful plaintiff is liable to pay the defendant's costs. This at least puts the creditor malgré lui in a more reasonable position than when he had to incur expense to protect himself from an antagonist who had nothing to lose.

During the progress of the wife's independence and emancipation, the practice of the Divorce Court exhibits an almost similar spirit of chivalry, though perhaps dum casta and dum sola qualify alimony a little more often than they did twenty years ago. The notion sometime prevailing that to insert the dum casta clause was to insult a virtuous woman, seems somewhat akin to regarding the Statute of Frauds as an insult to the honour of contracting parties. But at the present day an honourable man does not object to binding his pledge by law, and there seems no reason why an honourable woman should object to such an obviously just condition. The effect of the omission of the dum casta clause is considered in Bradley v. Bradley, 7 P. D. 237, and the clause itself is discussed in Wood v. Wood [1891] P. D. 272. In the slight reaction which has taken place, perhaps such a case as Harrison v. Harrison, 12 P. D. 130, would now be differently decided on this point.

There is also a general impression that the Divorce Court is not unduly stringent in finding 'cruelty' against a guilty husband, and so in effect facilitating a wife's divorce. No doubt there seems a specious injustice about the fact that a husband can get a divorce in circumstances where a wife would only be entitled to a judicial separation; but it must not be forgotten that a woman who divorces her husband is in a far better position than a man who divorces his wife, for whereas the respondent wife is simply freed from her fetters (and therefore in just as good a position as the petitioner husband) the respondent husband is still saddled with his burden of maintenance. Moreover a guilty wife is frequently given a small allowance, as in Clifford v. Clifford, 9 P. D. 76, and Lander v. Lander [1891] P. D. 161: but from Gladstone v. Gladstone, 1 P. D. 442, it would seem that in the converse case, however wealthy the wife or needy the husband, no such concession could be made to the latter.

To the long series of feminine victories in legislature and forum which took place in the nineteenth century, the twentieth has added one which may be mentioned, though it is of very little practical importance. In Cowley v. Cowley [1901] A. C. 450, it was decided that a divorced husband (in that case a Peer), whose wife had