Newspaper article THE JOURNAL RECORD

Doctrine of Necessaries `Unconstitutional'

Newspaper article THE JOURNAL RECORD

Doctrine of Necessaries `Unconstitutional'

Article excerpt

The so-called "doctrine of necessaries," which requires a husband to provide his wife with the items necessary for sustenance -- such as food, clothing, medicine and a place to live -- violates the constitutional guarantee of equal protection under the law, the Court of Criminal Appeals, Division III, held Tuesday.

The common law doctrine was codified in the Oklahoma Statutes in 1910.

It surfaced as an issue in Account Specialists and Credit Collections, Inc., vs. George Jackman, Jr. The collection firm sued Jackman to recover more than $25,000 in medical expenses relating to the last illness of Jackman's wife Margaret. At trial, the creditor was granted summary judgment pursuant to the statute.

"Because we find the law in question constitutionally infirm, we reverse the judgment," the court said.

The doctrine of necessaries allows a wife who cohabits with her husband to incur debt for her maintenance when the husband fails to support her.

"In the absence of express authority, the husband is not liable for the wife's obligations, except for necessaries," the appellate court said, quoting the 1892 Oklahoma Supreme Court decision in Baker vs. Witten.

As the court explained, at common law it was necessary to hold a husband responsible for such support because a married woman, by her coverture, had no individual rights to property she may have owned, either before or during the marriage. Under the state of coverture, a wife also lost her capacity to contract and to sue or be sued.

In Oklahoma, the doctrine of necessaries continued even after women acquired the right to own separate property.

"Thus, the duty of a husband to support his wife did not depend on the financial status of the wife," the court said in an opinion written by Presiding Judge Kenneth L. Buettner.

According to the opinion, only Oklahoma and Kentucky have codified the common law doctrine.

The equal protection guarantee is outlined in the 14th Amendment of the U.S. Constitution. …

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