‘Restitution of conjugal rights’
Today the intrusion of the state into the sexual life of private, of-legal-age individuals would be next to unthinkable, an injustice akin to the legalisation of rape within marriage.
In earlier eras New Zealand law mirrored that of its coloniser in the matter of ‘‘restitution of conjugal rights’’. The legislation derived originally from the Ecclesiastical Courts.
Prior to 1813 spouses who refused to return to the marital bed would be ex-communicated. From 1813 until 1883 the ‘‘crime’’ warranted six months imprisonment.
In practice, there was no suggestion that a court order compelling renewed carnal relations between estranged couples would be enforced. If the so-ordered husband or wife did not comply it was taken as grounds for desertion. It thus became a legal means to divorce, a sidestep in which adultery need not be proven.
Finding the loophole unacceptable, in 1907 the Liberal government removed it from the statute books. When it was reinstated in 1920, the farce began again.
A 1923 case in Pio Pio attracted headlines. Farmer Norman Cooper applied for his conjugal rites to be restored, having not had sex with his wife Victoria Taylor since he disappointed her on honeymoon some seven months before. Taylor had left without warning. She responded to the court order with a curt note:
‘‘I do not intend to again live with N. Cooper and this is my final decision’’.
Six years later Hamilton wife Leigh Elliot sought to have her conjugal rites restored in the Supreme Court, having been deserted by husband James Elliot, a man with whom she had two children.
When James failed to again warm the Elliot bed, the unhappy couple were effectively granted a divorce seven months later.
In 1947 a report by the Census and Statistics Department noted ‘‘the striking increase in the number of petitions for the restitution of conjugal rites has brought to the fore the question of collusive divorce’’.
Marriage break-ups had increased during the war years owing to an influx of American soldiers, ‘‘the presence of what might be called an army of occupation at a time when a large proportion of New Zealand males were overseas’’.