This research paper discusses the discord between a statute law and a common law in Australia regarding restitution of conjugal rights and marital rape.
This discord has led to conflict within the society about the marital duties and conjugal rights which a legally married couple are bound to perform within the institution of marriage.
BASIS OF THE ARGUMENT
The common law referred to in this research paper is The Family Law Act 1975 and the statute law is Criminal Law Consolidation Act 1935. Given below is the explanation of these laws in relevance to the arguments which are to be discussed in this paper.
The Family Law Act 1975
Section 8(2) of Family Law Act 1975 states-
“Proceedings for a decree of restitution of conjugal rights,
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On the other hand, Section 114(2) of the Family Law Act 1975 states-
“In exercising its powers under subsection (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.”
¬ It provides power to grant an injunction in the context of marriage. Section 114(2) gives the court power to grant a person relieve from performing conjugal rights and marital services which implies that there is an obligation on the parties to a marriage to render conjugal rights and perform marital services. Such obligations no longer exist in law and should not be considered to form a part of a marriage as a legal or social institution.
The former rule abolishes the legal action for restitution of conjugal rights whereas the latter implies a continuing obligation to perform marital duties and render conjugal
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The abovementioned acts form the basis of the argument which is to be discussed in this paper.
The paper will specifically deal with the conjugal rights of women in an institution of marriage and suppression of these rights over ages. The problem here came out following a few cases in Australia and other commonwealth nations which gave light to the issue regarding the existence of issues dealing with conjugal rights and marital rapes within an institution of marriage.
Conjugal rights can be defined as the rights, especially to sexual relations, regarded as exercisable in law by each partner in a marriage.
Although such conjugal rights exist for both partners to a marriage i.e. man and woman, the issue which will be discussed in this paper is regarding the conjugal rights of women, the reason of this being it is the gender which goes through societal pressures and has been oppressed for quite a long period of time.
The discussion will start following the decision laid down by the High Court of Australia in the case of R v L in the year 1991. This decision was later followed in another case PGA V. The
In the case of Yerkey v Jones 1 (Yerkey v Jones), the judgment of Dixon J established a principle that operates in certain circumstances where a married woman provides a guarantee for her husband. While the principle has come under a significant amount of criticism in more recent times, it was reapplied in the case of Garcia v National Australia Bank. (Garcia v NAB).2
Article 42A.1°1- This article relates to the "natural and imprescriptable" rights of all children. It also continues to mention that the state, albeit as far as practicable, will vindicate the rights of all children. G v An Bord Uchtála2 was a case relating to Article 42.5°3 (which will now be deleted and replaced), related to the "natural and imprescriptable" rights of the child which will now be protected under Article 42A.1. This case which concerned the rights of an unmarried mother saw the Supreme Court trying to expand the rights provided for under the now replaced article with no real continuity. The previous article relating to this placed no real emphasis on State intervention except in exceptional circumstances which will now be changed following the addition of the amended articles. Another interesting aspect of this amended article is the reference to "all children". Previously marital families enjoyed a specific set of rights and it was permissible to discriminate in favour of marital families in some cases. This discrimination arises from the protection offered under Article 41.3.2°4,_________________________________________________...
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For some background, this case escalated to the Supreme Court since several groups of same-sex couples from different states, sued state agencies when their marriage was refused to be recognized. As it escalated through appeals, the plaintiffs argued that the states were violating the Equal Protection clause and the Due Process Clause of the Fourteenth Amendment. Equal Protection, according to the Constitution refers to the fact that, “any State [shall not] deprive any person of life, liberty, or property, without due process of law…” (23). The opposition of this case was that, 1) The Constitution does not address same-sex marriage as a policy, and 2) The sovereignty of states regarding the decision. Ultimately, and according to the Oyez project, the Court held that “[the Amendment] guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples,” and therefore, same-sex marriage is a fundamental liberty.
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Cownie, F and Bradney, A. (2002) English Legal System in Context, London, Butterworths, pp. 293-4.
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