Spousal Compellability? Support for Marriage or Complete Myth

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The purpose of this report is to discuss the matter The Queen V Bayley, which took place on the 29th of September 2012. Adrian bailey (serial rapist) was found guilty on charges of murder and rape, this report will discuss in detail the court proceedings that lead up to the imprisonment of Adrian Bayley and also the events prior to the kidnapping of Jill Meagher. The purpose of this report is to discuss the purpose of law in our society and how it applies to people who commit crimes in our community. As well as the purpose of criminal law in our community.

The primary legal question facing the court is whether or not Ms Jonah and Mr White’s relationships can be classified and recognised as de-facto in accordance with the definition produced in section 4AA (1) of the Act. In order for the court to decide, it must be established if the pair’s relationships was one of a “genuine domestic basis”. The court must analyse Murphy J’s decision that the parties did not hold a “reputation” as a coupledom. Whether or not the feelings of both parties towards the grounds of their relationship was mutual is questioned. Furthermore, the appeal highlights that in accordance with the Act and precedence of Green v Green (1989) 17 NSWLR 343, it is possible for a marriage and a de-facto relationship to exist simultaneously, thus the court must address whether or not this fact is relevant to the decision.

The case exercised Articles 8, 12, 13 and 14 of the Human Right Act and the ECHR found in Goodwin’s favour.

The law relating spousal compellability. In 1940 Wigmore observed spousal compellability has a long history wrapped ‘in tantalizing obscurity’. Whereas Lord Wilberforce also states that to allowed a spouse to give evidence would rise to discord and perjury of the law which would be to ordinary people repugnant . These are two distinct opinions highlighting the fact that spousal compellability is a highly debatable area of law. Under section 80 of the Police and Criminal Evidence Act 1984 spouses are non-compellable unless the offence is one which is specified. However this spousal compellability has sparked intense criticisms and renders the justification questionable. By utilising relevant source, academic opinions and case authority, I will critically evaluate and consider all arguments concerning spousal compellability and include whether or not I think it is justifiable.

This is the basic rule that spouses should not be compellable to testify against their husbands, that the preservation of the matrimonial harmony of husband and wife is very important as two souls in one flesh. Marriage is a fundamental institution of the society and it’s the utmost respect, the institution of marriage has a greater importance to public interest rather than the outcome of judicial result . The New Zealand Commission noted that distress will be caused if a wife is compel to give evidence against her husband and this was supported by Lord Salmon were he comments that “it seems to me altogether inconsistent with the common law’s attitude towards marriage that it should compel a wife to give evidence against her husband and thereby destroy the marriage.” Allowing a wife to give evidence may incriminate her husband and furthermore it might put her in a state of risk in there matrimonial home, and it will also create a greater function of perjury in criminal proceedings. A wife is only compellable if the ‘offence is specified.’ PAEC s. 80 lays down further rules under the criminal charges related to specified offences as fellows.

In the novels written by Charlotte Gilman and Kate Chopin, the concept of marriage is contradicted from the romanticized relationship to a notion of imprisonment. Through the feminist perspective the reader gains a sense in which marriage may be the primary cause to gender oppression. In “The Yellow Wallpaper” Gilman’s central figure, who is unknown to the reader, is metaphorically imprisoned in a house in which the warden is her own husband. In contrast to this Chopin’s Character, Louise Mallard, gains a sense of liberation from a bleak marriage. It is clear that there two works illustrate how the characters are imprisoned through marriage. In both works there is a fine-line between the concept of domesticity and masculinity that ties

In his article ‘Equitable Rights of Cohabitees’ Hayton suggested that the distinction between common intention constructive trusts and proprietary estoppel has, over time, come to be but illusory and goes on further to propose that since the general direction of the development of the law has been to embrace the principle of preventing and remedying unconscionable conduct regardless of whether the claim brought before them was originally brought under the concept of a constructive trust or proprietary

In 1966 the House of Lords announced that it would in future be prepared to depart from a former decision by the House when it appeared right to do so . It is vital that the judges update the law according to the society and values today. An example of this case of R v R where a man was charged for raping his wife. This matter was brought up to the House of Lords, the judges pointed out that the ‘status of a married woman in our law have changed quite dramatically. A husband and wife are now for all practical purposes equal partners in marriage.’ They also highlighted that the common law is ‘capable of evolving in the light of changing social, economic and cultural developments.’ This implied that judges (House of Lords) can change the law only if it is a necessity.

H, 1999, para 9 &13). After separation, M “sought an order for partition and sale of the house and other relief” and spousal support under the Family Law Act” (para14). Both M and H settled their financial disputes (para18). However, M challenged the s.29 of the FLA and argued that definition of spouse in the act was only apply to heterosexual married couples and to unmarried couples who cohabited for maximum for three year (para 50) .The Supreme Court of Canada held that the s.15 (1) of the Charter is infringed by the Family Law Act. Further, the impugned legislation is not saved under s. 1 of the Charter (134). In addition, the FLA constructs distinction between the same-sex couples and opposite-sex couples that resulted in unequal benefits and protection to the claimants and also make same-sex couples vulnerable (para 62, 69). The Supreme Court of Canada declared remedy and gave Ontario six month to change the definition of the spouse (147).

The next argument the Plaintiff makes is about how damaging polygamy would be on our society, especially for women. The prosecutors refer to Reynolds v. United States (1878) and mention how other countries that allow Polygamy have a high rate of discrimination toward women. Therefore, the Plaintiff is arguing that allowing Polygamy would negatively affect the individual rights of women in the United States. The Plaintiff quotes Justice Waite’s opinion, “and from the earliest history of England Polygamy has been treated as an offense against society.” The Defendant, should not be allowed multiple wives, because it will lead to a more patriarchal society. The women in this civil contract would be limited due to the men of this religion having more control of

A 2011 case, Kreet v Sampir, Ms Kreet, the victim, wished for her marriage to Mr Sampir to be annulled as it was not a valid marriage under Australian law. Ms Kreet married her husband under duress from her family, therefore not giving her free and full consent making the marriage invalid under the Marriage Act 1961 (Cth). The marriage was then annulled (AustLII, 2011). In this case, Ms Kreet believed that her family was taking her overseas to be married to her boyfriend, Mr U, however while overseas, under duress, she was forced to marry Mr Sampir.

Moving further, the case of Mckerr v United Kingdom dispute that before an investigation can be carried out with regards to article 2 (as incorporated in domestic law by s.6 of HRA), the death in question had to have occurred after the HRA comes into force. Lord Nichollos in is address states that for one to be obliged to use article 2, one as to inquire that the death must have resulted due to a violent death, and for it to be enforceable in section 6 of HRA , it must be stated in it. Lord Brown also held that because the procedure to examine was connected to death, it

The current approach of the courts is seen in the case of Radmacher v Granatino. Here, LJ Thorpe's late judgment in Radmacher v. Granatino recognized that subject to specific safeguards, a deliberately built prenuptial agreement "should be accessible as a distinct option for the anxiety, tensions, and cost of a submission for ancillary relief to the width of legal caution". LJ Thorpe's viewpoint corroborates that prenuptial agreements should be legally binding and enforceable subject to a solitary overriding protection of critical foul

However regarding case Daniels v Campbell on appeal to the Constitutional Court, Sachs J held that the word "spouse" in its ordinary meaning includes parties to a Muslim marriage. Accordingly, it was not necessary to read-in words into the Acts. This case already shows the immense change the Constitution brought forward.