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Report No. 66

Chapter 13

Other Matters

13.1. Suits between spouses liability of wife to third parties and liability of husband for his wife's torts.-

Apart from questions arising out of the provisions of the Act of 1874, there are certain other matters which indirectly relate to the proprietary aspect of marriage. We propose to mention here three of them, in order to make our discussion comprehensive, though it may not be feasible in this Report to recommend amendment of the law on all of them.

(1) Suits between spouses

In England, statute now provides that each of the parties to marriage has the same right of action in tort against the other as if the parties were not married.1 There is one restriction in this regard, namely, when an action in tort is brought by one party to the marriage against the other during marriage, the Court may stay the action if-

(a) it appears that no substantial benefit2 would accrue to either party from continuance of the proceedings, or

(b) the question could be more conveniently disposed of under section 17, Married Women's Property Act, 1882.

We do not propose to make any recommendation on the subject, as it is not concerned with the property of a married woman as such.

(2) Liability of a wife to third persons

In England, under the Law Reform Act of 19353, a married woman may be sued for her torts, and is subject to the law relating to bankruptcy and to the enforcement of judgments and orders in all respects as if she were a feme sole. Before that Act

(i) any damages recovered against her would be levied only out of her separate property not restrained from anticipation, and

(ii) she could not be made bankrupt unless she was carrying on a separate trade.

We are recommending the adoption of this section4 in another Chapter since we find the provision to be in harmony with modern notions.

(3) Liability of a husband for his wife's torts

Another change made by the Law Reform Act of 19355, may be noted. At common law, a husband was liable to be joined with his wife in all actions for torts committed by the wife during the subsistence of the marriage. The House of Lords decided that this liability had not been taken away by the Act of 1882. Now, the 1882 Act had taken away the husband's interest in the wife's property, but he still remained liable for the wife's torts. This was unjust. In Newton v. Hardy, (1913) 149 LT 165 for example, a woman plaintiff recovered damages from the defendant for the enticement of the plaintiff's husband by the defendant's wife. The Act of 1935 remedied this injustice.6

We are separately recommending7 the adoption of this provision, in another Chapter since we find it rational and in tune with modern notions.

1. Section 1, Law Reform (Husband and Wife) Act, 1962 (Appendix 6).

2. See 241 H.L. Debates, 5th Series, Col. 1104, for the meaning of "substantial".

3. Section 1, Law Reform (Married Women's and Tort-feasors) Act, 1935 (Appendix 4).

4. Chapter 14, infra.

5. Section 3, Law Reform (Married Women and Tort-feasors) Act, 1935 (Appendix 4).

6. Section 3, Law Reform etc. Act, 1935.

7. Chapter 14, infra.

Married Womens Property Act, 1874 Back

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