The dangers of marriage in turn-of-the-century Auckland.

Case reviewed: Thomas v Perham, Supreme Court, Auckland
(1901) 21 NZLR 199

Background

Mrs Perham published statements about Mr Thomas, who then sued her for £500 (about $87,500 in 2014).

However, Mr Thomas also sued Mr Perham, under what was then the common-law liability of a husband for torts committed by his wife “during coverture” – i.e. when a wife was deemed to be under her husband’s power and authority.  As the old adage went, “By marriage, a husband and wife are one person in law.”

Mr Perham was not only unaware of the publication; he and Mrs Perham had been separated for 7 years, and further still they hadn’t even spoken during that time.

Mr Perham’s lawyer argued that the Perhams’ existing deed of separation—under which Mr Perham paid her a sum for maintenance—should be treated by the Court as equivalent to a decree of judicial separation, under which Mr Perham’s liability under the coverture principle would have been formally expunged.

Judgment

Justice Conolly rejected Mr Perham’s argument, finding that Mr Perham was liable for Mrs Perham’s actions because nothing had been shown to prove otherwise. As a result, Mr Perham was forced to face trial for his estranged wife’s libel.

Trial

Luckily for Mr Perham, the trial judge held that Mr Thomas had suffered no substantive damage from the publication.  According to a report by the Auckland Star, the Judge said the case should never have been brought in the first place.  Mr Thomas was hence awarded only one farthing (less than 20 cents in 2014), and no costs.

Comment

Coverture was a long-standing common-law principle, under which a married woman could not, for instance, enter a contract or own property in her own right. These inequities were gradually abolished in New Zealand from the late nineteenth century.

In respect of husbands’ liability for their wives’ torts, this was abolished by section 14 of the Law Reform Act 1936, which was later replaced by section 14 of the Married Women’s Property Act 1952.  However, we note that when this Act was, in turn, repealed by section 57 and Schedule 3 of the Matrimonial Property Act 1976—which in 2002 became section 51 of the retitled Property (Relationships) Act 1976 (PRA)—no analogous provision replaced it.

It is true that section 49 of the PRA provides that all married women have the same rights, privileges, powers, capacities, duties, and liabilities as married men.

But—playing devil’s advocate—it could be argued that the only substantive effect of section 49, in respect of the coverture conundrum, is that married women are now as equally liable for their husbands’ torts, as men like Mr Perham were in this case.

The Laws of New Zealand states, without reference:

A husband or wife is liable for the torts of his or her spouse, as the case may be, only where the liability arises according to those principles of the law of tort which make one person answerable in tort for the acts of another.

This seems a sensible and attractive position, but the fact is, there simply isn’t any extant rule of law confirming it… Have we uncovered a gap in the law?  Could married men and women find themselves liable for their spouses’ injudicious Facebook posts, blog entries and tweets?  (This provision does not appear to have any bearing on same-sex couples, to whom ordinary liability applies.)

Our pick is that a Court, if pushed, would interpret section 49 as encapsulating the object of section 14 of the Married Women’s Property Act 1952 and/or strike out the claim against the otherwise innocent spouse under section 51(3), which gives the Court wide discretion—though not exactly on point—in matters of tort involving parties to a marriage (this time including same-sex couples).

All the same, there could be a nugget here for a desperate lawyer…

There is no official report of the trial judgment, but the Auckland Star’s report can be found here.