In Family Law, author Christine Davies wrote:
"The gist of the action of enticement is the deprivation of the husband of the love, services and society of his wife, comonly called consortium. Consortium may be lost even though the husband and wife have continued to live under the same roof. An action for enticement differs from the action for criminal conversation in that adultery need not be aleged or proved...."
Thus, it has been said that there is "no element of seduction" in an action for enticement.1
In Davenport, Justice noteds that the key element of an action for enticement was:
"... loss of her comfort and society (consortium)....
In the 1933 edition of Husband and Wife, Montague Lush wrote:
"This action of enticement lay against anyone, male or female, friend or relative, who unlawfully induced the wife to leave her husband, or unlawfully harbours her after she has left him.
"Adultery was irrelevant to the action...."
In Kungle, Canada's Supreme Court quoted from Place v Searle in writing:
"The ingredients of the cause of action for enticement are ... as follows: A wife owes the duty to her husband to reside and consort with him, and any one who, without justification, procures, entices or persuades her to violate this duty commits a wrong towards the husband for which he is entitled to recover damages."
But, as law evolved, the action for enticement was inevitably found to be repugnant. In a 1952 case heard in the English House of Lords, Best v Samuel Fox:
"These ancient causes of action were ... founded on old authorities decided at a time when the husband was regarded as having a quasi-proprietary right in his wife ... A wife on the other hand was never regarded as having any proprietary right in her husband."
In that context, Justice McQuaid of the Prince Edward Island Supreme Court wrote, in Coles v Roach (1980):
"Its essence is the adultery between the wife and a third party, and it is no defence that the wife was a willing participant in the adultery, or indeed, the instigator of it. For the action is grounded in common law, on the principle that the wife was incapable of giving any consent to her own adultery, considered, as she was, something in the nature of a servant or chattel of her husband. Alfred Lord Tennyson put it this way: Something better than his dog, w little dearer than his horse.
"(T)his is an anachronistic procedure which is no longer relevant in today's society, and which has been described as being a ghost in the legal attic which bestirs itself from time to time to rattle its chains. But unless and until that ghost has been exorcised by the statute law and laid at rest accordingly, it will remain to haunt the corridors of the Courts. "
Most, but not all common law jurisdictions have abolished the cause of action for enticement, as they have done for jactication and criminal conversation. Many quickly and quietly did so when a woman had the courage to apply for such relief even though the common law had never provided the relief for wives, but only for husbands.
REFERENCES:
- Best v Samuel Fox & Co. Ltd., 1952 AC 716; also at (1952) 2 All ER 394
- Coles v Roach 112 D.L.R. (3d) 101; a;so at 25 Nfld. & PEIR 172 and 68 APR 172
- Davenport v. Miller 3 CCLT 2d 209; 70 DLR 4th 181; 108 NBR 2d 336, 269 APR 336; and 1990 CarswellNB 81
- Davies, C., Family Law in Canada (Toironto: Carswell Legal Publications, 1984), page 103
- Duhaime, Lloyd, Family Law
- Duhaime, Lloyd, Family Law Dictionary
- Kungl v Schiefer 1962 SCR 4; also published at 33 DLR 2d 278, 1962 CarswellOnt 59 and at 3 RFL 130
- Lush, M., Husband and Wife, 4th ed. (London: Stevens and Sons, 1933), page 35
- Place v Searle (1932) 2 KB 497
- Winchester v Fleming (1957) 3 All ER 711 (note 1)