Damages for Adultery in English Legal History^*

Eike Hosemann’s monograph focuses on a small but fascinating aspect of English legal history: actions for damages that allowed cuckolded husbands to sue their wives’ paramours in the civil courts for their alleged adultery. Few other features of English law caused as much consternation and, frankly, disbelief among foreign observers as this commercialisation of marital infidelity. But in England, the action had a long history. It made its first appearance in the common-law courts in the late 17th century and was replaced by a statutory variant by the Matrimonial Causes Act of 1857. It was not finally abolished until 1970. As an idiosyncratic and somewhat salacious feature of the English legal system, the action has attracted a fair amount of interest by legal and social historians (like Lawrence Stone). However, most of the attention has so far been devoted to the action’s early, pre-1857 history. In fact, there is a common misconception that the action was abolished by the‍‍‍ 1857 Act, when, in fact, that act only gave it a‍‍‍ statutory rather than a common-law basis. |Eike‍‍‍ Hosemann’s 2023 dissertation fills the gap in previous research by focusing on the history of the – now statutory – action after the passage of the Matrimonial Causes Act of 1857. His book is a wide-ranging and primary source-based study that discusses the reasons for the action’s survival in 1857 (at a time when it was already the butt of national as well as international satire and criticism), its application by the English courts after 1857, and the legal debates concerning its pros and cons down to its final abolition. The book’s aim is to understand why the English legislature maintained an action until the later 20th century that faced criticism from British as well as foreign observers.

The book opens with an introduction that sets the action in its contemporary European context. Hosemann makes clear that, although some Continental legal systems also allowed husbands to sue for damages if another man seduced their wives, the English action had a number of distinguishing features. Firstly, it was consistently available and consistently used. It was also highly visible: Newspapers regularly reported on actions for adultery with the plaintiff’s wife – often in considerable detail – well into the 20th century. In other European countries, by contrast, comparable actions were either not available at all, available only for shorter periods of time, or available but little used in practice. Secondly, the English action was enshrined in statute and thus the product of a conscious choice by the legislature. Thirdly, the English courts awarded huge monetary damages that put a price on »the actual value of the wife«¹ (7). So why was this singular action adopted by the Victorian legislature and subsequently maintained for more than a century? What arguments were used to justify it? How prevalent were these actions in practice? What determined a plaintiff’s success or failure? And what criteria did the courts refer to in assessing damages?

To answer these research questions, Eike Hosemann analyses a plethora of primary sources, including parliamentary debates, the recommendations of royal commissions, Law Commission materials available at the National Archives in London, reports of case law, and legal treatises. His findings are based on a total of 700 damages actions for adultery that were heard between 1858 and 1970. To flesh out the details of legal practice, the author even consulted files of unreported cases available through the website of the National Archives.

The first chapter (»Der Weg ins Gesetz«, 15–60) revisits the action’s history from its introduction by the common-law courts in the late 17th century until its »codification« by the English legislature in the Matrimonial Causes Act of 1857. The chapter makes clear that, by the mid-19th century, the action was widely perceived to be out of line with Victorian conceptions of marriage and gentlemanly behaviour, and »a common reproach« against the English among foreigners (29). It might therefore have been expected that Parliament would abolish the action when it enacted the Matrimonial Causes Act of 1857. Instead, however, the act provided for a new statutory action that »shall be heard and tried on the same Principles […] and subject to the same or the like Rules […] as Actions for Criminal Conversation are now tried and decided in Courts of Common Law« (35). The continuation of the action was mainly justified by three considerations: firstly, the deterrent effect such an action was likely to have on potential marital interlopers; secondly, the need to punish adultery; and, thirdly, the need to provide for the wife and any children of the marriage, who could be given a share of the damages by an order of the court.

The second chapter (»Die gerichtliche Praxis«, 61–173) explores how the action played out in legal practice. With more than a hundred pages devoted to it, this is the focal point of Eike Hosemann’s analysis. He shows that »the value of the wife« was the central – if somewhat vague – criterion for damages (87). The emotional hurt done to the husband was another important factor. The defendant’s ability to pay also had a significant effect on the size of the financial award (although the courts denied this). The same is true of the wife’s need for post-divorce maintenance, if there was a chance that the defendant would not marry her and that she would be unable to support herself. The courts might also consider the state of the marriage prior to the adultery. If the marriage had broken down before the defendant’s |interference, the damages awarded might be nominal. However, according to Eike Hosemann, juries |were quite ready to buy into a plaintiff’s narrative that his marriage had been »perfectly happy« until the defendant stepped in to alienate the affections of his wife (114). Finally, hefty damages might be awarded to sanction behaviour that seemed particularly reprehensible, like seducing the wife of a friend or relative. Hosemann’s statistical analysis reveals that actions for adultery were not brought as often – and that their success rate was not as high – as previously thought.

The book’s third and final chapter (»Der Abschied von der Schadensersatzklage«, 175–219) reviews the political debates leading to the abolition of the action in 1970. Somewhat surprisingly, the action was largely uncontroversial until 1909, when the Gorell Commission was appointed to examine the matter. However, it was not until the creation of the Law Commission in 1965 that there was »general agreement with the view that claims of this type are distasteful« (190). In his conclusion, Hosemann recapitulates the key functions of the damages action.

Eike Hosemann’s book is an eminently informative and readable study of an idiosyncratic feature of the English law of marriage. It provides a sensitive consideration of the motives that upheld the action for so long, and in the face of mounting criticism. The action’s longevity is a testament to the slow evolution of English (marriage) law, which may also be observed in other areas, most notably divorce.