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MATRIMONIAL RIGHTS & DUTIES UNDER STATUTORY LAW



These are duties that arise once parties are statutorily married

1.         The right to consortium – a consortium is the right to the company society and affection of a spouse in any matrimonial relationship.  Under the old common law rules it was the husband who had a right to the wife’s consortium but the wife had no such right to her husband’s consortium.  What she had was a duty to offer her companionship and services to the husband.  Under the old common law rules the husband also had the right to chastise his wife if she failed in her duties including confining her within the house.

Republic v. Jackson

In this case, the wife had gone to live with relations whilst her husband was absent in New Zealand.  After his return she refused to live with him again.  Consequently he arranged with two men that they should seize her as she came out of church one Sunday afternoon.   She was then put into a carriage and taken to her husband’s residence, where she was allowed complete freedom of the house but was not permitted to leave the building.  She then applied for a writ of habeas corpus and it was unanimously held by the Court of Appeal that it was no defence that the husband was merely confining her in order to enforce his right to her consortium.

Republic v Reid

The two cases established that the current position is that though spouses have the right to the others consortium, they cannot use extra judicial means to enforce them.  In one of the cases the husband locked the wife in the house and refused anyone to see her the cause was being difficult to live with.

In Nanda v. Nanda (1968)

The husband deserted the wife and went to live with another woman.  The woman installed herself in the flat where they were living and refused to move.  The husband applied for an injunction to restrain the wife from moving to the flat where he was living with another woman.  In granting the injunction the court stated that a wife or a husband cannot force a husband/wife to live with a spouse who has rejected them.  In other words while the law recognises there is consortium, they cannot enforce it and neither can one use extra judicial means to employ it. 

The Matrimonial Causes Act provides for restitution of conjugal rights but if the other party is not willing, no court can force an order for restitution of conjugal rights.  Where consortium is lost, a husband cannot insist on conjugal rights.  One cannot force an order for restitution of conjugal rights if the other party is not willing.  One has an option to go to court for divorce.

R V. Kadhi EX PARTE NASRREN (1973) E.A. 153

This case is important for the position that whatever system of family law is applied, they must be constitutional or they are declared null and void.

There are a number of other various rights that accrue from consortium.

(a)                Right of the wife to use her husband’s name; in the Kenyan case to acquire her husband citizenship.  In Kenya the husband does not acquire the wife’s citizenship although in other areas he does.

(b)               Both spouses have a duty to cohabit together in their matrimonial home, however the decision as to where that matrimonial home will be cannot be specifically made by a specific spouse and it has to be a joint decision and this was the ruling in Dunn v. Dunn (1949)98  in this case the husband petitioned for divorce on the ground of desertion alleging that when he had returned from working overseas (he was a sailor) he had requested his wife to go and live with him at a sea port where he was stationed  and that she had refused and persisted in her refusal for his request.  His argument was that the husband has the right to decide where the spouses should live and that by refusing to join him she was therefore guilty of desertion. It was held that it is not a proposition of law, it is not the law that a husband has the right to say where the matrimonial home should be.  It is simply a matter of ordinary good sense arising from the fact that the husband is usually the wage earner and has to live near his place of work.  It is the duty of the spouses to decide by agreement as to what their matrimonial home should be.  Therefore the wife was not guilty of desertion in this particular case.  The court is saying that it is not the law that the husband should decide where they are going to live.

(c)                The spouses have the right to sexual intercourse with one another and this plight commences with consummation of marriage and continues even after the marriage has been consummated.  Consummation is the act of sexual intercourse after the celebration of the marriage.  However the right to sexual intercourse continues even after consummation.  However this does not mean that a spouse should submit to unreasonable demands of sexual intercourse AB V CD 28 K.L,R, 210  The court held that the wife had the right to refuse to submit to unreasonable demands for sexual intercourse.  It amounts to cruelty and can be a ground for divorce.  On the issue of marital rape, it has been held that a man cannot be guilty of raping his wife unless they are separated or divorced.  This is judicial separation.  If a man insists on sexual intercourse when they are judicially separated, he will be guilty of rape as was the case in R v. Clarke also R v. Miller.  Is the use of contraceptives against the wishes of the other spouse a contravention of marriage.  It has been held that it does not affect the right to sexual intercourse but it can however give rise to divorce if it is shown to have injured the other party whether emotionally or physically it can be cruelty.

Right to Matrimonial Confidence within the spouses.

This is the basis for privilege position of spouses in the law of marriage.  The law will protect any matrimonial confidence that is entered into during the subsistence of marriage.  Even in the event of a marriage break down the law will seek to protect a spouse from disclosure of such confidences.

Argyll v. Argyll

(a)                Name/citizenship
(b)               Right to cohabit
(c)                Right to sexual intercourse
(d)               Matrimonial confidence all this arise from the right of consortium.


2.   RIGHT OF MAINTENANCE:

Under common law, the obligation to support a spouse applied to both spouses. Therefore a man was under an obligation to support his wife and vice versa.   However this was modified by statutes whereby now under statue the wife is the one who has the right to maintenance by her husband where she is financially dependent of him and that scope of maintenance is in accordance with the husband’s financial standing and his standard of living.  The husband is also under a duty to maintain his children during a marriage and even after a marriage.  This maintenance arises under (a) the Matrimonial Causes Act Sections 25 and 26 and under the subordinates Courts Separation and Maintenance Act Section 10.  please note that the right to maintenance accrues during marriage and even after the marriage has ended.

When claiming for maintenance the wife has to indicate her needs and her children’s needs, her own income as well as her husband’s income.  There is no hard and fast rule as to the amount of maintenance that a court may order, however there are certain guidelines which apply.

In the case of Alimony Pendente tite which is alimony or maintenance paid to a wife pending determination of a divorce case.  In those cases it is provided for that that alimony may not exceed one fifth of the husband’s average net income for the preceding 3 years.  That is only in relation to cases of alimony pending suit.

In other cases of maintenance the courts follow the common law practice of awarding an amount that will make the wife’s income one third of the aggregate income of both husband and wife.  This is just a guide offered and courts will depart from it where the facts of a particular case warrant it.

Under section 32 of the matrimonial Causes Act the court can vary a maintenance order where circumstances arise warranting that variation.
N v N (1973) KHD 40

In common law the right to maintenance stops as soon as cohabitation ceases but under statutory law the right continues even after cohabitation.  Under customary law the right to maintenance cease once cohabitation ceases.

 
 
 

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