255:, family law has varied significantly (and still varies today) by province/territory. Canadian family regulations have traditionally been based on concepts existing in English common law (except in Quebec, where the principal source of inspiration has been French law). As such, restitution of conjugal rights has been a part of law in most, but not all, provinces. In Canada, it was only in the second part of the 20th century that a standardization of family law has been started. For example, until 1968, there was no uniform federal
210:(Cth) s 8(2). Therefore, since 1975 courts no longer have the power to make a "decree of restitution of conjugal rights" to enforce marital duties. One problematic provision today is considered to be Section 114(2) of the Family Law Act 1975, which remains on the books, and provides that a court can "make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights". Although this section is now obsolete (its last recorded use was in 1978; and the 1991
227:
and "The
Commissions therefore consider that the power to make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights is unnecessary and inconsistent with current principles of family and criminal law, and, as such, should be repealed." (see section on
776:
292:
which came into force in 2005 (see section 103). The concept of restitution of conjugal rights has never been as harsh in
Alberta as it has been in England; indeed, according to the 1993 report, unlike in England, "Neither excommunication nor imprisonment has applied in Alberta"; in fact by 1993, the
226:
strongly recommended its abolition, writing that "Section 114(2) implies that there is a continuing obligation to render conjugal rights and provide marital services—obligations that no longer exist in law and which should not be assumed to form part of a marriage as a social or legal institution"
161:
repealed the
Matrimonial Causes Act 1884. Failure to comply with an order of restitution of conjugal rights continued to be a ground for judicial separation, but would no longer be considered, on itself, desertion. In addition, failure to comply with a decree of restitution of conjugal rights also
532:
wrote that rape in marriage could not be recognized because the wife consents irrevocably to sexual intercourse with her husband as she "hath given up herself in this kind unto her husband, which she cannot retract". This was accepted as law until the late 20th century in most common law
284:, which is Canada's most populous province: the report stated that "In Ontario, actions for restitution of conjugal rights have never been entertained". While in many Canadian provinces the family law has been overhauled and modernized in the 1970s and 1980s, in others, such as
305:, the 2012 Matrimonial Statutes Repeal Act ("An Act to Repeal Out-dated Matrimonial Statutes") repealed six pieces of legislation related to family law, which were considered obsolete, including the Alimony Act, which made reference to restitution of conjugal rights. Also in
301:, the concept of restitution of conjugal rights was effectively abolished by the Family Maintenance Act, SS 1990–91, c F-6.1, through its repeal of the section on restitution of conjugal rights relating to judicial separation (which was defined in the Queen's Bench Act). In
148:
of husband and wife, giving the wife the right to divorce her husband on the ground of adultery alone (previously only a husband had such a divorce right), so that asking for an order of restitution of conjugal rights was no longer as needed for wives.
222:(ruling that, if the common law exemption was ever part of Australian law, it no longer was by 1991), the existence of such wording in the Family Law Act 1975 is argued to send problematic messages to the public; and in a 2010 report the
120:, failure to comply with an order of restitution of conjugal rights was no longer punishable by imprisonment, and only served to establish desertion ("statutory desertion") which gave the other spouse the right to an immediate decree of
263:
is a federal Act that governs divorce in Canada, applying to all the country, many other issues regarding family law are left to province/territory. The legal action of restitution of conjugal rights was abolished in
182:
In
Scotland, the legal action for "adherence" - the Scottish equivalent for restitution of conjugal rights - was abolished by Section 2(1) of the Law Reform (Husband and Wife) (Scotland) Act 1984.
329:
English law was imported to many parts of the world through colonization, and so was the concept of restitution of conjugal rights, which continues to exist in law, in various forms, in some former
309:, the 2008 "Act to Repeal the Divorce Court Act" repealed legislation which made reference to restitution of conjugal rights. Although family law in Canada varies by province/territory, the
84:
Under the jurisdiction of the
Ecclesiastical Courts, which controlled marriage regulations, desertion was not defined as a matrimonial offense, instead a deserted spouse could ask for a
276:
by the Family Law Act, S. Nfld. 1988, c. 60, s. 76.3, as amended by S. Nfld. 1989, c. 11, s. 2. Not all provinces in Canada had adopted this concept; according to a 1993 report by the
50:
who was guilty of "subtraction"; that is, living away from their spouse without a good reason. If the suit was successful, the married couple would be required to live together again.
357:. Recently this law was challenged again in the Supreme Court post the Right to Privacy verdict by Ojaswa Pathak and Mayank Gupta, two students of Gujarat National Law University.
101:
277:
141:
117:
797:
861:
345:(which found that the action of restitution of conjugal rights does not violate Article 14 or Article 21 of the Constitution, and is therefore a valid action).
507:
553:
158:
333:, including India. In India, the concept has been subject to controversy, and was called by Khardekar (MP), at the time of the drafting of the
88:. After such a decree was obtained, the other spouse had to return home and continue marital cohabitation - failure to do so was punished with
171:
58:
902:
32:
293:
refusal of a spouse to comply with a decree of restitution of conjugal rights only served as giving the other spouse a ground for
700:
755:
243:, the legal action for restitution of conjugal rights was abolished by the Divorce Act, 1979 (Act No. 70 of 1979), Section 14.
451:
174:
abolished the action of restitution of conjugal rights. By that time, the action was seen as outdated and was rarely used.
653:
571:
617:
533:
jurisdictions, including in
England and Wales until 1991, when it was removed by the House of Lords in the case of
223:
288:, this only happened in the 21st century: the legal action of restitution of conjugal rights was abolished by the
892:
677:
833:
737:
529:
408:
423:
592:
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allowed a court to make provisions regarding finances, alimony, property, and custody of children.
491:
211:
718:
633:
350:
338:
310:
701:"Status of Bills / Bills, Statutes, Regulations / Proceedings / The Nova Scotia Legislature"
897:
314:
260:
28:
8:
330:
294:
280:, the concept of restitution of conjugal rights has never been a true part of the law of
207:
191:
145:
121:
474:
452:"Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights"
324:
346:
411:
Proposal for the abolition of the matrimonial remedy of restitution of conjugal rights
534:
525:
265:
862:"Supreme Court to look into plea against laws for restitution of conjugal rights"
621:
89:
165:
54:
886:
614:
371:
306:
539:, and in Ireland until 1990, when it was removed by the Criminal Law (Rape)
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report recommended the abolition of the action, and it was abolished by the
376:
318:
298:
240:
229:
Injunctions to relieve a party to a marriage from rendering conjugal rights
219:
105:
302:
256:
206:
the legal action for restitution of conjugal rights was abolished by the
20:
399:, Book 3, Chapter VII "Of the cognizance of private wrongs", Section 1.2
815:
341:
upheld the constitutionality of the restitution of conjugal rights, in
152:
366:
325:
Current situation in former
British colonies and Commonwealth nations
203:
190:
The legal action for restitution of conjugal rights was abolished in
337:(which contains it), "uncouth, barbarous and vulgar". In 1984, the
269:
125:
36:
39:, over which the ecclesiastical courts formerly had jurisdiction.
285:
281:
272:
by the
Equality of Status Act, R.S.M. 1987, c. E140, s. l(2); in
129:
43:
354:
252:
492:
http://www.irishstatutebook.ie/eli/1988/act/31/enacted/en/html
268:
by the Family
Relations Act, R.S.B.C. 1979, c. 121, s. 75; in
816:"Smt. Saroj Rani vs Sudarshan Kumar Chadha on 8 August, 1984"
166:
The
Matrimonial Proceedings and Property Act 1970 (abolition)
231:). Despite this, this provision still remains on the books.
104:
abolished the excommunication punishment, replacing it with
317:
and is the same throughout Canada. Under the criminal law,
47:
313:
is under the exclusive legislative jurisdiction of the
95:
792:
790:
159:
Supreme Court of Judicature (Consolidation) Act 1925
153:
Supreme Court of Judicature (Consolidation) Act 1925
475:"Law Reform (Husband and Wife) (Scotland) Act 1984"
135:
111:
787:
654:"The Family Maintenance Act, SS 1990-91, c F-6.1"
524:This exemption refers to the 17th century jurist
884:
349:has criticized this concept as being a cause of
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608:
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172:Matrimonial Proceedings and Property Act 1970
59:Matrimonial Proceedings and Property Act 1970
446:
444:
442:
440:
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603:
615:http://www.alri.ualberta.ca/docs/fr065.pdf
128:, allowed the wife to obtain an immediate
554:"Protection orders and injunctive relief"
551:
501:
499:
433:
738:"An Act to Repeal the Divorce Court Act"
424:"Matrimonial Proceedings Act 1970, s.20"
86:decree of restitution of conjugal rights
35:. It was one of the actions relating to
33:Court for Divorce and Matrimonial Causes
505:
16:Action in English ecclesiastical courts
885:
834:""Will I Get My Dues … Before I Die?""
496:
735:
508:"Injunctions for personal protection"
409:The Law Commission (Law Com. No. 23)
218:(1991) 174 CLR 379, 398 criminalized
124:, and, if coupled with the husband's
397:Commentaries on the Laws of England
343:Saroj Rani v Sudarshan Kumar Chadha
13:
903:Marriage law in the United Kingdom
96:The Ecclesiastical Courts Act 1813
14:
914:
719:"Matrimonial Statutes Repeal Act"
528:, who in his 1736 legal treatise
506:Manager, Web (11 November 2010).
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224:Australian Law Reform Commission
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42:This could be brought against a
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736:Brunswick, Communications New.
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136:The Matrimonial Causes Act 1923
112:The Matrimonial Causes Act 1884
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102:Ecclesiastical Courts Act 1813
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25:restitution of conjugal rights
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355:discrimination against women
278:Alberta Law Reform Institute
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194:by the Family Law Act 1988.
7:
395:William Blackstone (1753),
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177:
142:Matrimonial Causes Act 1923
118:Matrimonial Causes Act 1884
10:
919:
552:Anonymous (27 July 2010).
530:Historia Placitorum Coronæ
321:was made illegal in 1983.
185:
64:
634:"Family Law Act, SA 2003"
274:Newfoundland and Labrador
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335:Hindu Marriage Act, 1955
290:Family Law Act (Alberta)
259:in Canada. Although the
781:www.esocialsciences.org
678:"The Queen's Bench Act"
212:High Court of Australia
479:www.legislation.gov.uk
339:Supreme Court of India
311:criminal law of Canada
893:Ecclesiastical courts
802:www.manupatrafast.com
541:(Amendment) Act, 1990
108:of up to six months.
29:ecclesiastical courts
27:was an action in the
798:"Manupatra Articles"
261:Divorce Act (Canada)
725:. 27 November 2017.
573:Family Law Act 1975
331:British possessions
295:judicial separation
208:Family Law Act 1975
146:grounds for divorce
122:judicial separation
866:The Indian Express
841:Human Rights Watch
763:www.pssg.gov.bc.ca
620:2014-08-02 at the
347:Human Rights Watch
315:federal government
777:"eSocialSciences"
31:and later in the
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887:Categories
872:2020-02-10
847:2020-02-10
742:www.gnb.ca
686:2020-02-10
663:2020-02-10
639:2020-02-10
579:2020-02-10
460:2020-02-10
383:References
116:Under the
53:In 1969 a
367:Coverture
204:Australia
198:Australia
618:Archived
361:See also
351:violence
270:Manitoba
214:case of
178:Scotland
126:adultery
37:marriage
286:Alberta
282:Ontario
192:Ireland
186:Ireland
130:divorce
65:History
44:husband
253:Canada
247:Canada
837:(PDF)
759:(PDF)
681:(PDF)
536:R v R
455:(PDF)
427:(PDF)
297:. In
216:R v L
353:and
170:The
157:The
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100:The
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202:In
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