I promised to look into a matter which was raised by Deputy Finlay. I should have given a longer explanation last night of the matter involved. It arose on Section 2. Deputy Finlay also made his remarks applicable to Section 4 but it can be dealt with on Section 2, which runs:—
"(1) Subject to this Act, a married woman shall—
(d) be capable of suing and being sued,
as if she were unmarried."
That is as it stands now. The suggestion has been made that the section may lead to objectionable actions between husband and wife. We discussed the possibilities of objectionable actions last night. The only point which was left over was whether it permitted detinue or conversion and ejectment proceedings and whether, in the ejectment proceedings, the old right of consortium was being weakened or abolished under this section.
I should have described it last night in this way. The position, as far as all these actions are concerned, that is to say, actions relating to property, is that a married woman can take them under the law as it stands, and the Bill makes no change whatsoever. Section 12 of the Married Women's Property Act, 1882, gave to a married woman the same civil remedies for the protection, security and recovery of her separate property as if she were unmarried, and it expressly gave her these rights against her husband as well as against any other person. A wife may, under the law as it stands, sue her husband in trover or detinue (Larner v. Larner (1905) 2 K.B. 539) and, if she had a trade or business which is her separate property, he may be restrained by injunction from interfering with it, but—and I want to emphasise this—it does not follow that a husband can be restrained from entering premises belonging to and in the occupation of his wife in the exercise of his marital right of consortium (see Halsbury, 1911 Edition, page 459).
In addition to that statement of English law, there are two cases to which I should like to refer. In Gaynor v. Gaynor (1901) 1. I.R. 217, the court, while restraining the husmand from interfering with the business carried on, refused to restrain him from entering the premises. The distinction is perhaps even better emphasised in Weldon v. De Bathe (1884) 14 Q.B.D. 339, C.A., which was an action of trespass against a person entering a house bought out of a wife's earnings and in her sole occupation, though the defendant did no injury and entered with the husband's authority; the point being that the entry was for purposes unconnected with the husband's desire to live with his wife.
The position is this: the 1882 Act, until we can get this to replace it, is law here. Under that Act, the right of consortium is not interfered with. In the Irish case I have cited, the husband was restrained from interfering with the business, but would not be restrained from entering the premises because it was the marital home. In the other case, it was not connected at all with the marital relations between the couple.
In reply to Deputy Finlay, who made this point to me, I would offer him this in answer. This piece of legislation says a married woman shall be capable of suing and being sued as if she were unmarried. That only gives the right to sue. When one comes to the case and when the case is contested, defences to the action remain unimpaired and the right of consortium is still there. Anything that depends on the marital state is not taken away. The legislation does not say that the right of consortium is abolished.
The second point is this: We have had the situation since 1882 of having phrases even wider than those here. The law has been that way since 1882, and cases have shown that the right of consortium can be established. For those reasons, I would suggest—and this matter has been seriously considered—that there is no fear at all of what Deputy Finlay expressed last night.