5. Living together, and being maintained

Consortium is the bundle of rights that marriage gives: society, sexual intercourse, protection, and the domestic life of the household. Lord Reid called some of them hardly capable of precise definition. Cohabitation is the usual sign of it. Spouses may live apart by agreement and still have it, if they intend to resume. Each must act reasonably about where the home is to be. Jones v Jones adopted Denning LJ's statement in Dunn v Dunn. The place of the home is settled by agreement and by give and take, not by one spouse imposing a will. Unreasonableness that drives the other out is desertion.

There is no right to beat a wife, and no right to lock her up. R v Jackson put an end to the idea that a husband may confine his wife in order to enforce consortium. Sexual demands must be reasonable. The Domestic Violence Act 2007, No. 20 of 2007, now makes the point in statute. Domestic violence, including physical, sexual, economic and emotional abuse, is an offence. A domestic relationship includes a marriage under any law and a relationship of cohabitation. The magistrate may make a protection order. Whatever an old customary practice of chastisement may have allowed, it is not a defence to that Act.

The remedies against a spouse who simply refuses to live with the other are thin. Restitution of conjugal rights still exists under the Matrimonial Causes Act, and either spouse of a Christian or civil marriage may petition. There is no punishment for disobedience. The practical use of the decree is that it opens the door to periodical payments. Smart found no Sierra Leone petition. The remedy does not apply to a Mohammedan marriage, because "marriage" in the Act is monogamous.

Against a third person, the common-law actions survive. England abolished enticement, harbouring and adultery damages in 1970. Sierra Leone did not. Enticement is persuading a spouse to leave. Adultery and mere alienation of affection are not enough. The words "Come on, we will go" can be enough, as in Place v Searle. A parent who gives shelter is not liable for harbouring if the shelter is given from humanity, or if the wife left because she was ill-treated. Honest belief in that ill-treatment is a defence. Demby v Bishop shows the limit of the action. A man already married under the Christian Marriage Act cannot sue for the harbouring of a second woman he married under customary law.

Section 20 of the Matrimonial Causes Act lets a husband claim damages from the adulterer, in a separate action or in the petition. The claim is in tort. It survives the wife's death. It is compensatory, not punitive. The court looks at the financial value of the wife to the husband and at the injury to his feelings, and it keeps the second head moderate. The adulterer's wealth does not increase the damages. Wilson v Genet is the local authority. The wife has no matching claim against the woman who commits adultery with her husband. Where a tort injures one spouse so that consortium is lost, but does not end the marriage, the husband has historically recovered and the wife has not. Best v Samuel Fox is that case. The House refused to extend the action to the wife, and was not willing, on those facts, to abolish the husband's.

Maintenance while the spouses are still married is the husband's common-law duty to provide necessaries. It is prima facie performed by providing a home. She has no right to a separate allowance in a separate house unless she is justified in living apart. If she commits adultery, and he has not connived at it or condoned it, the duty goes. If he deserts her, she may pledge his credit as an agent of necessity for so long as she remains chaste. His instruction to tradesmen not to supply her does not, in that case, defeat the agency. England abolished agency of necessity in 1970. It remains part of the law here.

The court order is narrower. Under the Married Women's Maintenance Act 1888, Cap. 100, a magistrate may order maintenance for a deserted wife and the children of the marriage. The applicant must prove desertion. Elba v Elba is the caution. Spouses who are still living together, and a move that she did not object to, are not desertion merely because he later changes address. The weekly sum the Act allows is small. A Mohammedan wife may use this Act. A customary wife may not. Hyde v Hyde is the reason given: the magistrate's matrimonial machinery was built for a monogamous marriage. Enforcement is distress, or imprisonment for a short term. If the husband has no goods and cannot be found, the order is paper.

The High Court does not award maintenance as a free-standing claim. It awards it as a consequence of a decree: alimony pending suit, permanent alimony after divorce or nullity, alimony on judicial separation, and periodical payments after a decree of restitution that has been disobeyed. Section 4 of the 1961 amendment adds one further door. A wife who has grounds for judicial separation, and whose husband has wilfully neglected to maintain her or the infant children, may apply for periodical payments. Without those grounds, neglect during a subsisting cohabitation is not enough. There is no general duty, during cohabitation, on a wife to maintain her husband. On a decree against her for adultery, cruelty or desertion, the court may settle her property for the husband and the children.

A wife divorced under Islamic law is outside the Matrimonial Causes Act. Neither that Act nor the general law then obliges the former husband to maintain her. The Social Welfare Department sometimes brokers a payment. It has no statutory power to order one.