THE MARRIAGE LAW

Otago Witness, Issue 4038, 4 August 1931, Page 10

THE MARRIAGE LAW

SOME CURIOUS CONSEQUENCES ADDRESS BY MR J. B. CALLAN. A meeting of the Otago University Commerce Faculty Ex-students’ Association, in conjunction with the Society of Accountants, wa s held in the University Club rooms, Queen’s Buildings, on Tuesday evening, when Mr J. B. Callan, Dean of the Law Faculty (Otago University), gave an address on “Some Legal Responsibilities of a Husband and a Father. - ’ There was a large attendance. Mr G. W. Reid, chairman of the Dunedin branch of the Society of Accountants, presided. Mr Callan said if any of his audience expected matter useful to them in their professions they would be disappointed, because it had been representd to him by those who suggested the address that after working hours accountants wished to get away from the atmosphere of their own work. He had been invited to talk about law, but in a way to interest the audience without wearying them. It was even hinted that the audience might be amused, but that was a preposterous demand. An accountant would recognise that law was dry, and a lawyer regarded it as sacred and pot a fit subject for facetiousness. In view of the suggestion to avoid a heavy workaday subject several interesting topics had been put aside reluctantly, such as the problems connected with capital and income, problems arising out of company law. problems arising in the order of solicitors’ trust accounts, the question whether a joint fidelity fund of solicitors and accountants was desirable. Ihe question whether the present system under which a solicitor selected his own auditor was desirable, and whether separate guarantee funds for the North and South Islands were desirable in view of the apparent discrepancy between the capacity of the two islands in producing deialeations. None of thes.~ topics cou ! d be touched, because they dealt too c!o>;■ ly with work, which he had been asked t > avoid. When accountants were sought to be considered in some other capacity than accountants it was difficult to find a capacity or a characteristic that they all bad in common, but all of them were, or ought to be, family men, and marriage carried with it very heavy legal responsibilities for a husband, with which not all husbands were familiar, and in which it wag desirable to arouse public interest, with a view to forming some public opinion. If the matter he put before"the meeting proved not familiar to most of the audience, those of them that were not married could take it as a warning, and those who were as a consolation, as an indication to them that they had been very fortunate in their wives. The fundamental principle he wished to discuss wag this: that a husband, merely because he was a husband, was legally responsible in damages for all torts committed by his wife while she was big wife. To make the effect of the proposition clear it was necessary to define a tort. A tort was something that the law regarded as wrong, but which was neither a crime, a breach of contract, nor a breach of trust. Uncomfortable as was the legal position of husbands they could not be punished for what their wives did: they could not be hanged, imprisoned, or fined for the misdeeds of their spouses. But they could be made to pay damages to the parties injured, and this was so whether the husband had encouraged the wife or endeavoured to dissuade her, had approved or disapproved, although he had profited, although he did not know of the tort, although the wife was well able to pay herself, or although she might have ceased to live with him. If she was his wife when she committed the tort, and remained the wile at the time the judgment was obtained, and the plaintiff chose to join the husband as a defendant, judgment would be against the husband; the whole of the damages could be collected from him, and he had no means of getting any redress from his wife. To appreciate what this meant, it was desirable to consider how wide was the field of activity covered by torts. Examples of torts were slander, libel, assault, trespass, damage to property, kleptomania (considered as a civil offence), nuisances (for example, excessive piano playing), and fraud. Then there was the immense field covereel by negligence—the careless handling of an umbrella in a crowd, the careless use of unprotected hatpins in the days when hatpins were used, or carelessness by a lady in the lighting of her cigarette so that other people’s clothes or furniture were damaged. A lady who persisted in smoking in bed and burned down the house committed a tort, and her hueband would be liable, even though he was not there. The negligent driver of a motor vehicle was an ever-present modern form of the tort of negligence. It was unsafe to assume that the compulsory third party insurance risk, inaugurated in 1928, threw on to an insurance company all the husband’s potential responsibilities. If the Act were looked at, it would be seen that the insurance companies were not responsible to near relatives and the owner, nor were they responsible to persons who were in the vehicle at the time. The result of this was that if a wife were driving her mother in the wife’s own car and damaged her mother by careless driving, the mother-in-law could have satisfaction in successfully claiming damages from her son-in-law, who might never have approved of his wife owning a car at all. Sometimes, of course, this responsibility of a husband was eminently reasonable. He might have encouraged the tort or been a party to it; he might have enjoyed jt; he might have liked the slanderous tittle-tattle or the excessive pianoplaying; he might have benefited by the tort, or he alone might have the means to pay. But the point was that he was liable quite apart from any of these con-

siderations. His liability was automatic, and flowed from his husbandhood. Some extraordinary situations resulted from this. A married woman, for example, went into politics. Of course, she waa exempt from responsibility for what she said in the House, but not from what she said on the hustings. If she committed slander, the husband, who might violently disagree with all her political opinions and activities, could be made to pay for her words. In 1901 there was a curioua case in England, in which a lady with literary aspirations found it inconvenient to live any longer with her husband. She separated from him on terms that he paid her a large allowance, and she dabbled in journalism. The first he knew of one of her efforts was when ho was served with a writ for a libel she had therein committed. He contested hie liability, but unavailingly, and he had to pay. About the same time there was an extraordinary fraud case in which a married woman, having borrowed £5300 from a friend and being unable to repay it, represented to the friend, who appeared to have been a very credulous widow, that if the widow put up another £2OOO the borrower knew of a very good thing in shares, and the result would be that in three months the original loan would be repaid. The borrower’s husband, a colonel in the army, knew nothing of these transactions, and got none of the money, but he was held liable. The origin of this responsibility was, of course, the old doctrine of the English common law, that husband and wife were one. A married woman was really a person unknown to the law; her legal existence merged completely in that of her husband. It was only as recently :.s 1891 that it was judicially decided that the husband’s right of corporal cor’ection -was- obsolete, and the doctrine had this consoling small consequence to this <!ay r , that husband and wife could talk slander to each other without any legal danger, provided they allowed no third person to overhear. In the old days, of course, a married woman could not own property at law. That was remedied By ihe Married Women’s Property Act of !SB2. Whether the leigslators meant to abolish at the same time the hu.-band’s automatic responsibility had s.nce been much debated. If they did not mean to do so, it was a curious example of the chivalry of man-made law. If they meant to do so it was a curious example of bad draughtsmanship and muddle-headed lawmaking. There had been debate and difference of opinions between very great lawyers and judges as to what was the xact significance of the Married Women’s Property Act in this matter. In 1909 Fletcher Moulton, L.J., wrote a very learned and careful but dissenting judgment, in which be held that the Married Women’s Property Act had abolished the husband's liabiliy, and the Commonwealth High Court in Australia came to the same conclusion. But in England and New Zealand the contrary view prevailed, and in 1924, during the chancellorship of the Earl of Birkenhead, the question got to the House of Lord:-. It came there before five very famous lawyers, and by 3 to 2 it was decided that the Married Women’s Property Act did not abolish the husband’s liability. The minority consisted of the Earl of Birkenhead and Viscount Cave. Immediately after this, in the same year. Viscount Cave introduced a Bill into the House of Lords with the object of getting the law altered, but that; Bill had never become law. Why or whence the opposition came - as not known to the lecturer. At the New Zealand Law Conference, held in Auckland in 1930, the matter was discussed, and opinions were by no means unanimous. Miss Melville, a well-known Auckland legal practitioner. pointed out that, as there were so many married women in the world with no means to pay damages for any wrongs they might commit, a sweeping alteration of tlm law might do inju. tice. and she thought the remedy was to give every married woman a trades’ union minimum wage and the opportunity of acquiring her own separate property. Then, and only then, would Miss Melville consent to the law being changed. Mr Singer, another well-known Auckland practitioner, thought that equality oetv.-een the sexes could best be reached, not by abolishing the husband’s liability d'or his wife’s torts, but by enacting the wife’s liability for her hu: band's torts. Finally. Mr Gray, K.C., president of the New Zealand Law Society, and chairman of the meeting, reminded the conference that the attitude of women’s societies had to be reckoned with, and was often surprising. He pointed out that when the abolition of capital punishment was raised, particularly as to whether women should be hanged, a large and influential body of women had insisted on having equal rights in the matter.

The meeting accorded Mr Callan a warm vote of thanks for his address.