"Conjugal Rights" and the Right to Refuse to Have Sex

As yet another reminder of "Dear God am I happy I was born when I was and not a few hundred years ago," married women in England only gained the right to refuse to have sex with their husbands fairly recently. These excerpts outline how that situation evolved.

Detail from The Courtship by John Collet (1766)

Detail from The Courtship by John Collet (1766)

"A husband's right to sexual intercourse was assured by law in several ways. Firstly, by the law and custom of marriage. Sir Matthew Hale commented in 1736 that it was impossible for a husband to be tried for rape, because by marrying the wife had 'given herself up' sexually to her husband and could never retract that consent.

Secondly, an ancient right under canon law allowed either party to claim restoration of 'conjugal rights' (i.e. cohabitation). Under the 1857 Divorce Act, refusal to cohabit after being ordered to do so by a judge was contempt of court and could entail a prison sentence. Once a woman was cohabiting with her husband he could rape her with impunity. As Oswald Dawson put it in 1895, a wife was 'at the mercy of the carnal appetite of the man ... at all times and without regard to the state of her health, or any other considerations', he continued, 'This slavery of compulsory cohabitation is surely chattel-like'. He concluded, 'until a woman who is a wife can say, at least at certain times....'I wish to sleep alone'... she can never consider herself free'.

The Matrimonial Causes Act 1884 reformed the law so that a refusal to restore conjugal rights no longer led to imprisonment but was deemed to be desertion, which was then grounds for divorce. From then, wives are found applying to court for 'the restitution of conjugal rights', not because they wanted their husbands to move back in, but as the first step towards getting a divorce." Excerpt from  History of Women: Marriage, by Helena Wojtczak (an excellent website that you should go read!) 

The Court of Chancery in the early 19th century (1808) - https://en.wikipedia.org/wiki/Court_of_Chancery#/media/File:Court_of_Chancery_edited.jpg

The Court of Chancery in the early 19th century (1808) - https://en.wikipedia.org/wiki/Court_of_Chancery#/media/File:Court_of_Chancery_edited.jpg

"The 1884 Act thus gave effect to the policy that it was oppressive and unnecessary to imprison those who preferred to live apart from their spouses. But the extent to which the courts were prepared to recognise the existence of legally enforceable ‘rights’ in the family context remained unclear. Only a few years later, a sensational case illustrated the difficulty:

In R v. Jackson a husband applied for and obtained a decree for restitution of conjugal rights against his newly married wife, and set about enforcing it. Assisted by two young men (one a solicitor’s articled clerk) he seized her as she was leaving church in the Lancashire town of Clitheroe and forced her into a carriage, claiming to have used no more force than was absolutely necessary to separate her from the sister he believed to be responsible for what had happened. Mrs Jackson was kept in the husband’s house in Blackburn in charge of her sister and a nurse and she was visited by a doctor. The husband claimed that he showed her every kindness and consideration and that she had the free run of the house,  ‘doing just as she pleased, save leaving the house’; and that he ‘had offered several times to take her for a drive, but she had declined to go’. The wife’s relatives instituted habeas corpus proceedings; and the Court of Appeals rejected the husband’s argument that a husband had the right to enforce the ‘general dominion’ he had over his wife by imprisoning her if she refused him the conjugal rights to which a court had declared him entitled. Lord Esher MR regarded the 1884 Act as the ‘strongest possible evidence to shew that the legislature had no idea that a power would remain in the husband to imprison the wife for himself, not least because to accept this view would result in his being allowed to act as party judge and executioner.

The Jackson decision was at the time unpopular in some quarters, and it was certainly widely misunderstood. But it is a landmark in family law: the decision recognises that the ‘rights’ which exist between husband and wife are of a different order than (say) the rights of the parties to a commercial contract. But the question of ‘how different’ remained difficult." 

Legal Consequences of marriage: Conjugal Rights and Remedies (an excerpt from Stephen Cretney, Family Law in the Twentieth Century: A History, Oxford University Press (2003))


Fun fact: Under English law, women only gained the right to divorce her husband on the grounds of adultery alone in 1923. Men previously were the only ones to have that right.

The action of restitution of conjugal rights was only abolished in 1970, though at that point it was rarely used. The equivalent legal actions in Scotland and Ireland were abolished in 1984 and 1988, respectively.