Division 4 of Part V of the Matrimonial Causes Act (Chapter 282) contains a remedy of considerable antiquity.
Section 48
A petition may be based on the ground that the parties, whether or not they have at any time cohabited, are not cohabiting, and that, without just cause or excuse, the party against whom the decree is sought refuses to cohabit with, and render conjugal rights to, the petitioner.
They are not cohabiting. The words “whether or not they have at any time cohabited” mean the remedy is available even where the parties never lived together after the marriage.
A refusal. Not mere absence — a refusal to cohabit and render conjugal rights.
Without just cause or excuse. The same phrase as in section 17(b). Conduct amounting to constructive desertion under section 18 gives just cause, and defeats the petition.
Section 49 — a separation agreement is no defence
An agreement for separation, whether entered into before or after the commencement date, does not constitute a defence to proceedings for a decree of restitution of conjugal rights.
The reasoning is that the parties cannot contract out of the obligations of marriage. It sits alongside section 19, under which a refusal of a bona fide request to resume cohabitation, made against the background of a separation agreement, becomes desertion from the date of the refusal.
Section 50 — the sincerity requirement
(a) that the petitioner sincerely desires conjugal rights to be rendered by the respondent and is willing to render conjugal rights to the respondent; and
(b) that a written request for cohabitation, expressed in conciliatory language, was made to the respondent before the institution of the proceedings — or that there are special circumstances that justify the making of a decree notwithstanding that no such request was made.
The requirement of sincerity, and of the petitioner’s own willingness, is directed at a real risk: that the petition is brought not to restore the marriage but to manufacture a ground for divorce.
That risk is obvious from section 17(k), which makes failure to comply with a decree of restitution for one year a ground for dissolution. Without section 50, a spouse could petition for restitution knowing it would be refused, wait a year, and petition for divorce.
Paragraph (b) reinforces the point by requiring a written request in conciliatory language before proceedings. The request must be a genuine invitation to resume the marriage, not a formality.
Note the collusion bar in section 28, which applies to every decree under the Act.
Section 51 — notice as to a home
Where the Court makes a decree on the petition of a husband, the petitioner shall, as soon as practicable after the making of the decree, and at such other times as the Rules require, give to the respondent notice, in accordance with the Rules, of the provision made by the petitioner, or that the petitioner is willing to make, with respect to a home for the purpose of enabling the respondent to comply with the decree.
A decree ordering a wife to resume cohabitation is meaningless unless there is somewhere to cohabit. Section 51 requires the husband to say what home he has provided or is willing to provide.
The obligation is continuing — “and at such other times as the Rules require” — so the position must be kept current.
The provision applies only to a decree on a husband’s petition. It reflects the assumption of the period that the matrimonial home would be provided by the husband.
Section 52 — not enforceable by attachment
A decree of restitution of conjugal rights is not enforceable by attachment.
Attachment is the process by which a person in contempt of a court order may be arrested and imprisoned. Section 52 removes it for this decree alone.
That is a deliberate and important limitation. A court will not imprison a person to compel them to live with, and render conjugal rights to, a spouse. Any other rule would be inconsistent with the guarantees in sections 32, 36, 42 and 55 of the Constitution.
Compare section 86, which provides for attachment generally in matrimonial causes, and section 90, which allows enforcement of decrees by other means. Section 52 carves this decree out of that machinery.
So what is the decree for?
Since the decree cannot be enforced by attachment, its real significance lies in what follows non-compliance:
- Section 17(k) — failure to comply with a decree of restitution for a period of not less than one year immediately preceding the petition is a ground for dissolution;
- The decree establishes, authoritatively, that the respondent’s refusal to cohabit was without just cause or excuse — which bears directly on desertion;
- It supports an application for maintenance, since the respondent’s position is fixed by the decree.
The remedy is therefore best understood as a formal step that clarifies where fault lies, rather than as a means of compelling anyone to do anything.
Given section 50’s sincerity requirement and section 52’s limit on enforcement, most parties in this position will find judicial separation, a summary separation order under section 3(2), or a petition for dissolution the more practical course.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 3, 17–19, 28, 48–52, 86, 90
- Constitution — ss 32, 36, 42, 55
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.