R v L

R v L - [1991] HCA 48 - HCA 1991 case summary — Zoe

[52]

"That the duty of matrimonial intercourse cannot be compelled by this Court, though matrimonial cohabitation may." This species of malicious desertion is a ground of divorce in some countries - certainly not so here - and still less will it justify a wife, in a resort to unlawful pleasures, that lawful ones are withdrawn. It is not however to be considered as a matter perfectly light in the behaviour of a complaining husband, that he has withdrawn himself without cause, and without consent, from the discharge of duties that belong to the very institution of marriage; and if he has so done, he ought to feel less surprise if consequences of human infirmity should ensue. When Mrs Orme [43] complained that, though her husband allowed her to live in the same house with him, she "was denied access to his person and bed", Sir Christopher Robinson denied the jurisdiction of the Consistory Court of London to make a decree for the resumption of sexual intercourse between parties who were actually cohabiting. Although a decree of restitution of conjugal rights did not compel a respondent to have sexual intercourse with a petitioner after they resumed living together, persistent and wilful refusal of intercourse was a relevant factor in ascertaining whether the decree had been complied with [44] . When statutory jurisdiction in divorce was added to the ecclesiastical jurisdiction of the court, persistent and wilful refusal of sexual intercourse was a relevant factor in determining whether the refusing party had deserted the other [45] or had given the other just cause to leave [46] but it did not amount in itself to desertion [47] . Jeune P. in Synge v. Synge [48] said that "a refusal of matrimonial intercourse has never been regarded as a matrimonial offence". Sexual intercourse was realistically treated as an aspect, albeit an important aspect in most cases, of married life the absence of which might, dependent on the total relationship of the parties, be significant to the determination of a charge of desertion. In Powell v. Powell [49] , Latham C.J. said: Neither a husband nor a wife can repudiate the status of marriage - they remain married whether they like it or not - but one of them may so behave as to destroy some or all of the various elements which constitute married life. Cussen J. indicated these elements in Tulk v. Tulk [50] : - "Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties." 1. (1790) 1 Hag. Con. 144, at pp. 154-155 [161 E.R. 504, at p. 508]. 2. Orme v. Orme (1824), 2 Add. 382 [162 E.R. 335]; see also McDonough v. McDonough (1925), 42 W.N. (N.S.W.) 78. 3. Bartlett v. Bartlett (1933), 50 C.L.R. 3, at pp. 9, 22-23. 4. Drake v. Drake (1896), 22 V.L.R. 391; Simons v. Simons (1898), 24 V.L.R. 348. 5. Synge v. Synge, [1900] P. 180, at pp. 195-196; affd [1901] P. 317; Dale v. Dale (1951), 53 W.A.L.R. 42. 6. Maud v. Maud (1919), 26 C.L.R. 1; Weatherley v. Weatherley, [1947] A.C. 628; Dorr v. Dorr, [1947] St. R. Qd 235. 7. [1900] P. 180, at p. 193. 8. (1948) 77 C.L.R. 521, at p. 524. 9. [1907] V.L.R. 64, at pp. 65-66.

[63]

the Family Law Act embraces a view about the institution of marriage which accords a respect for the spouses' free and equal choice as to what that union means to them above and beyond that which the Act lays down and the conditions therefore upon which it may continue. (Emphasis added.) If I understood this argument correctly, it was submitted that the mutual rights of spouses in respect of sexual intercourse have been abolished and the status of husband and wife no longer entitles them to claim from each other a reasonable sexual expression of their connubial relationship. The condition on which a marriage may continue is said to be the continued agreement of the spouses and, in the context of sexual relations, each spouse is free to consent to or refuse intercourse on any occasion without reference to the rights of the other spouse. Such an argument eliminates the difference between the status of husband and wife bound by mutual obligations to consent to sexual intercourse when it is reasonable to do so and the relationship of a man and a woman who, not being bound by those obligations, are free to give effect to their individual desires of the moment in deciding whether to engage in sexual intercourse or not. The argument was supported by the abolition of the "fault" grounds of divorce and the consequent power of either party to separate from the other and to put an end to the marriage. That circumstance combined with the abolition of jurisdiction to decree restitution of conjugal rights or judicial separation [62] has eliminated the occasions when the courts have found it necessary to spell out the mutual rights of the spouses and the occasions when, in consequence of a breach of connubial obligation by one spouse, the courts have granted relief to the other. It must be said that the Family Law Act, in its provisions relating to divorce, operates without reference to the rights and obligations of the parties arising from the marriage, but it does not abolish connubial rights and obligations. If it had that effect the Act would be invalid, for the institution of marriage and the status of husband and wife are inseparable from the connubial rights and obligations which are the incidents of the institution and which give content to the status. However, in my view, the Act leaves connubial rights and obligations intact. The jurisdiction conferred by s. 114 of the Act (especially sub-ss. (1)(d) and (2)) assumes the continued existence of those rights and obligations. If the Act were to deny their relevance in the exercise of all jurisdiction under the Act, the Act would be open to the reproach that s. 43(a) is no more than a piece of cynical window-dressing to mask a legislative attack on the institution of marriage which that section proclaims a "need to preserve and protect". For my part, I would hold that the connubial rights and obligations arising from marriage were unaffected by the enactment of the Act save as to their extinguishment by divorce or suspension by a decree under s. 114. I would reject the Commonwealth's submissions. It does not follow, however, that a husband's right in respect of sexual intercourse is inconsistent with s. 73(3) of the Criminal Law Consolidation Act or that a wife is to be taken to consent to any act of sexual intercourse with her by her husband. 1. Family Law Act, s. 8(2).

[69]

(1.) A husband [it is said] cannot commit rape upon his wife by carnally knowing her himself, but he may do so if he aids another person to have carnal knowledge of her. But he added a footnote [72] to that text: 1 Hale, P.C. 629. Hale's reason is that the wife's consent at marriage is irrevocable. Surely, however, the consent is confined to the decent and proper use of marital rights. If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted of rape, notwithstanding Lord Hale's dictum. He gives no authority for it, but makes the remark only by way of introduction to the qualification contained in the latter part of clause (1), for which Lord Castlehaven's Case [73] is an authority. In the fourth edition (published in 1887), however, the author altered the footnote [74] to state his opinion that in the circumstances postulated a man might be convicted "at least of an indecent assault". The reference to conviction for rape was deleted. This explains the statement by Stephen J. in Clarence where he said [1] : I wish to observe on a matter personal to myself that I was quoted as having said in my Digest of the Criminal Law that I thought a husband might under certain circumstances be indicted for rape on his wife. I did say so in the first edition of that work, but on referring to the last edition (p. 124 [sic], note), it will be found that that statement was withdrawn. The view which his Lordship had expressed in the first edition was echoed by some of the judges in the minority in Clarence . Wills J. said [2] : If intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority. And Field J.'s view was this [3] : But it is argued that here there is no offence, because the wife of the prisoner consented to the act, and I entertain no doubt that, if that was so, there was neither assault nor unlawful infliction of harm. Then, did the wife of the prisoner consent? The ground for holding that she did so, put forward in argument, was the consent to marital intercourse which is imposed upon every wife by the marriage contract, and a passage from Hale's Pleas of the Crown, vol. i p. 629, was cited, in which it is said that a husband cannot be guilty of rape upon his wife, "for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband, which she cannot retract." The authority of Hale, C.J., on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime. In Scotland, Hale's statement was adopted by Baron Hume in 1797 in his Commentaries on the Law of Scotland, Respecting Crimes [4] and followed by later writers but in S. v. H.M. Advocate [5] the Lord Justice-General, speaking for the High Court of Justiciary, doubted Hume's view: Our first observation is that if what Hume meant was that by marriage a wife expressly or impliedly consented to sexual intercourse with her husband as a normal incident of marriage, the reason given affords no justification for his statement of the law because rape has always been essentially a crime of violence and indeed no more than an aggravated assault. Even in Hume's time there was no immunity for a husband who assaulted his wife even if the assault contained elements of the grossest indecency. If, on the other hand, Hume meant that by marriage a wife consented to intercourse against her will and obtained by force, we take leave to doubt whether this was ever contemplated by the common law, which was derived from the canon law, regulating the relationship of husband and wife. 1. (1888) 22 Q.B.D. 23. 2. (1877), at p. 172; 2nd ed. (1879) and 3rd ed. (1883) accord. 3. ibid., at p. 172, fn. 1. 4. (1631) 3 St. Tr. 401. 5. p. 194, fn. 4. 6. (1888) 22 Q.B.D., at p. 46. 7. ibid., at p. 33. 8. ibid., at p. 57. 9. vol. 1, p. 306. 10. [1989] S.L.T. 469, at p. 473.

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

Parties