Wife tied tubes without husband’s knowledge
Dear Mrs Macaulay, My wife tied off after our first child, without me being aware. We agreed to have three children, but she went ahead and did the procedure, and I wasn’t aware, until I was searching for some documents recently and found her medical records. Can I sue her for breach of contract and deception? I don’t want our child to be raised as an only child, and now she has put me in a position where we will have a broken home.
It is so unfortunate that you have come to the conclusion that your wife’s decision and action about the issue of her autonomy over her own body, her reproductive health, and how she wishes to face the future after having a child with you, is not hers to make because you say that you had “agreed” to have three children and that she has breached that contract and deceived you.
I am constrained to believe that you have not engaged in a balanced discussion with your wife in order to understand her reason and position about the issue of her reproductive health. It has been my experience and it is generally accepted that couples who communicate on an even playing field all the time, have happy and lasting unions.
Yes, your wife did not discuss her decision, which she is legally entitled to make. Why was this so? Was it that your attitude to her views had not been supportive? Were your views stated in an authoritarian manner and she was silent in order to avoid rows, and you took that as her agreement?
You have concluded that she has placed you in a position where you will have a broken home! Did you try to obtain assistance from a marriage counsellor to enable you and your wife to have a balanced discussion of all the issues and from both of your points of view? From your letter, I conclude that you have not made these efforts to really listen during a calm and respectful discussion, and you have decided to end your marriage.
So, let me now deal with your legal position. You have concluded that your statement that you agreed to have three children is a contract which is legally binding. Well, I am sorry to inform you that it is not a legally binding contract. It does not meet any of the requirements to make it legally binding. These requirements are, in short, that you both at the time intended it to be legally binding; that there was quantifiable injury and/or damage suffered as a result of your wife’s decision; then, in relation to the “deception”, by which I understand you to be implying that your wife acted fraudulently, I cannot identify any damage or injury or loss that you have suffered as a result for which a Jamaican court of law can compensate you.
You see, I do not know of any law which grants to a husband a legal right to have to agree and consent for his wife to have a tubal ligation. Rather, our constitution guarantees a woman’s constitutional and legal right to make her own decisions about her person and her reproductive health decisions.
In addition, marital plans/agreements are not recognised as legally binding contracts but are deemed as hopes, wishes or understandings. You may have had, at the time you and your wife “agreed”, a mutual marital understanding, but these are not enforceable in law.
Perhaps you should think of it in this way — if such agreements were enforceable and after your wife had your first child, complications arose with her reproductive organs, how could you then conclude that she had breached your contract to have three children? Such a conclusion on your part would be so unreasonable as to be absurd in every sense.
I hope that you can see and recognise the unenforceability of what you incorrectly believe is a contract in civil law. It is not!
You can, under the Matrimonial Causes Act, file a petition for the dissolution of marriage which only provides the sole ground that your marriage has irretrievably broken down. But I fervently hope that you would instead seek marital counselling for you and your wife before you take that drastic step. Remember that you arrived at this position based on your misconception that you entered into a binding and enforceable contract that you would have three children. But I hope that you now recognise that that mutual understanding which you had is non-binding and unenforceable in law.
It would be in my view very unfortunate for you to end your marriage because of your mistaken conclusion about the law. Try to save your marriage by all means at your disposal and give your child a stable and loving home.
I wish the best for you and your family.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide private, personal responses.
