Has the Time Come to Abolish or Adapt the Husband’s Common-Law Right to his Wife’s Domestic Services?

• Jurisdiction: South Africa
• Date: 27 May 2019
• Pages: 336-353
• Author: Elsje Bonthuys
• Citation: (2017) 28 Stell LR 336
• Published date: 27 May 2019

HAS THE TIME COME TO ABOLISH OR ADAPT

THE HUSBAND’S COMMON-LAW RIGHT TO

HIS WIFE’S DOMESTIC SERVICES?

Elsje Bonthuys

BA LLB LLM PhD

Professor, School of Law, University of the Witwatersrand

1 History of the husband’s legal entitl ement to his wife’s labour

In 1911 the App ellate Div ision, in Union Govern ment (Minister of Railways

and Harbours) v Warneke (“War ne k e”)1 extended the delictu al action for loss

of support – which had previously only been granted to wives and children – to

a man whose wife was killed because of the negligence of railway employees.

Although his claim for the loss of t he “comfort and society” of the wife was

adjudged to fall outside the s cope of the lex Aquilia because it cannot be

assigned a monetary value,2 th e second claim for t he loss of her “assist ance in

the care, clothing and upbringing of his childr en” was granted. De Villiers CJ

based the decision on the legally recog nised parental d uty, which applied to

both pa rents, to supp ort their child ren.3 This judgment depicted the husband’s

entitlement to his wife’s assistance as an aspect of the parental duty to support

children, and limited it to women’s childcare work only. However, Innes

J’s judgment in the same case placed the husband’s entitlement on a more

expansive footing, arguing that the wife owed a duty of support not only to

the children, but also to her husband, and mentioned specically that “the law

regards her a s primarily in cha rge of household affairs.”

4 Innes J’s v iew that

a husband is entitled to his wife’s household labour a s a consequence of the

spousal duty of support, is the one which has been preferred and adhered to in

subsequent case law. It has been applied and extended in t wo legal context s.

The rst is the dependant’s delictual action for loss of support arising from the

death or inju ry of a breadwinner, a nd the second is universal partnerships in

married and u nmarried intimate relationsh ips.

Although the primary focus of t his article i s to inter rogate the conti nued

use of this ru le in universal partnersh ips, it is useful to trace its evolution

from the dependant’s action for loss of support, both as historical backgrou nd

and as a comparator. I argue that the rule is damagi ng in itself because it

fails to recognise the extent to which women do, a nd always have, made

nancial contributions to their families a nd denies the economic value to

family members of women’s trad itional caretaking and homemaking work.

The inter action between the female duty to do housework, on the one hand,

1 1911 AD 657.

2 662, 667.

3 663.

4 669.

336

(2017) 28 Stell LR 336

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and the rules on universal par tnerships and dependants’ claims for loss of

support on the other hand, limits women’s claims to share in the nancial

wealth generated during their relationships and constitut es i mpermissible

discrimi nation on the basis of gender.

1 1 Dependant’s action for loss of suppor t

Following upon the War ne k e decision, the Ap pellate Division in Abbot v

Bergman5 extended t he husband’s act ion for loss of support – and thereby

a wife’s duty to contr ibute her labour – to a situat ion where the wife had

been disabled, but not killed, and where her services consisted of unpaid work

in a boarding house, rather than childcare work. I n Gildenhuys v Transvaal

Hindu Education Council

6 the husband’s action was u pheld where the w ife’s

contribution con sisted of a portion of her ear nings as a midwife. Schreiner J

remarked that the duty to maintain child ren and the duty to maintain a

husband were different aspects of the duty to contribute to the joint household

which rest s on both spouses.7 The legal position was c rystallised in Plotkin

v Western Assurance (“Plotk in”)8 in which a w ife, who had provided unpaid

assistance in her husband’s garage business, was i njured. In response to the

defendant’s argument that a claim only vested where the deceased or injured

spouse had a legal duty to cont ribute, the court held that:

“The duty of support rests primarily upon the husband, but if the husband’s earnings are insufcient

and if the assistance of the wife is necessary to support the joint household, whether there are children

or not, I think that it is her legal duty to render such assistance…The wife’s contribution instead of

being a direct contribution is a contribution of services which enable her husband to earn an income

with which to support the household.”9

The jurispr udence on the dependant’s action for loss of support posits two

alternative bases for a husband’s right s to his wife’s services: the most restr icted

is the wife’s parental dut y to care for her children; the second, broader, basis

is that a wife’s household services con stitute her contribution t o maintaining

her spouse and the joint hous ehold,10 which re sts on both spou ses according

to their na ncial and other me ans.11 References to the rst gr ound for the

wifely duty to provide f ree labour have become uncommon and the cu rrent

understandi ng is t hat this duty is an aspect of the duty of spousal support.

Initially the common-law duty of spousal support was narrowly de ned in

purely nancial term s and, as the quote from Plotkin shows, rested on ly upon

5 1922 AD 53.

6 1938 WLD 260.

7 1938 WLD 260.

8 1955 2 SA 385 (W).

9 221.

10 Some cases ba se it on the duty to provid e spousa l suppor t, while others mention the s pousal du ty to

contribut e to the common household. The dut y of spousal support does not nec essarily coincide pr ecisely

with the dut y to contribute t o the common househ old, but for the purp ose of this art icle nothing tur ns on

this disti nction. See furt her J Heaton & H Kruger Sout h African Family Law 4 ed (2015) 48-49; J Sincl air

& J Heaton The Law o f Marriage: Volume I (1996) 442-4 49, 456, 476.

11 Shanahan v Shanahan 1907 28 NL R 15; Excell v Davis 1924 CPD 472 476; Gildenhuys v Transvaa l Hindu

Education Co uncil 1938 WLD 264; M cKelvey v Cowan 1980 4 All SA 625 626, 627; Plotkin v Western

Assurance 1955 2 All SA 212 (W).

THE HUSBAND’S COMMON-LAW RIGHT 337

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