Thomas v Perham and Perham (1901) 21 NZLR 199 (Supreme Court Auckland) (Interlocutory ruling followed by trial)

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


Facts: Mrs Perham published statements about Mr Thomas, who then sued her for £500 (about $88,650 in 2016).

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 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.

Held: Justice Conolly rejected Mr Perham’s argument, and held 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 an Auckland Star report, 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 2016), and no costs.

Discussion: “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 s 14 of the Law Reform Act 1936, which was later replaced by s 14 of the Married Women’s Property Act 1952.

However, DU notes that when this Act was repealed in turn by s 57 and Schedule 3 of the Matrimonial Property Act 1976 – which in 2002 became s 51 of the retitled Property (Relationships) Act 1976 (PRA) – no analogous provision was substituted in its place.

It is true that s 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 s 49, in respect of the coverture conumdrum, 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… Has DU 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.) 

DU’s pick is that a Court, if pushed, would interpret s 49 as encapsulating the object of s 14 of the Married Women’s Property Act 1952 and/or strike out the claim against the otherwise innocent spouse under s 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 crafty lawyer...