A (Very Brief) History of Women
Separation and Necessaries
By Amy A. Edwards
Did you ever wonder why “they might come after me” if the bill collector can’t find your ex? It is because North Carolina uses the doctrine of necessaries. When you hear about a duty of support, you think of alimony but that applies only between spouses. But when a third-party, such as a doctor or hospital, provides necessary services to a spouse, that third-party has the right to seek payment from the other spouse in certain circumstances, based on the doctrine of necessaries. This arises in both services (medical and non-medical) and goods but necessaries are frequently disputed in the context of medical care. Those services are usually expensive enough to merit the time and cost of litigating them in court. The general rule is that a third-party who provides medical services that were necessary for health and well-being of the husband or wife may seek payment from the other spouse. [FN1]
The Exception to the Rule: Separation and Notice
North Carolina recognizes a quirky exception to the general rule. If you and your spouse are separated when he or she receives the medical care and the provider has actual notice that you are separated, you have a defense. [FN1] In other words, current law says that just being separated isn’t legally adequate to get you off the hook for your spouse’s medical bill. The third-party provider must be put on notice that you are separated. As you might imagine, most people won’t go to the hospital and elect to mention that their spouse shouldn’t be liable for payment of the bill. People can avoid being at the mercy of the law by making their own agreement. Usually, separation agreements address this by agreeing the person who receives care must reimburse the other spouse if he or she is forced to pay it.
Early Law: Wife’s Expenses
The colonies brought with them British law, which at the time said that unless the wife left her husband for an unjustified reason, he was responsible for her necessary expenses, i.e., her necessaries. Technically, if a husband failed to provide for her, a wife was legally entitled to obtain what was necessary, at which time he would owe the provider of goods or services on her behalf. This assumes she was in a position to enforce those rights. But unlike a single woman, upon marriage, a wife had virtually no independent legal existence. In one 1858 North Carolina case described below, the Court noted that “. . . the legal existence of the wife is merged in that of the husband, so that she is incapable of making a contract, . . . to bind either herself or her husband.” [FN 2] While the couple lived together, the wife could be considered an agent of her husband.
Early Law: What if They Were Separated?
A wife’s agency status ended if she left her husband. In most circumstances, the law looked unkindly on wives who made the decision to leave their husbands. The element of fault determined whether a wife had good cause to leave her husband. If she had a good reason to leave him, the husband would be responsible for the wife’s necessary expenses. If she did not have a valid reason to leave him, the person or business providing her with necessary goods or services in violation of his rights faced legal liability from the husband. He could sue someone for assisting her in carrying out her unjustified effort to leave him. In the 1858 case, a doctor sued the husband for payment of his medical services, and the NC Supreme Court cited an 1849 case in setting out the rule at that time:
If a wife leaves the “bed and board” of the husband without good cause . . . even in respect to the food, clothing, or shelter necessary for her existence, he is entitled to an action and may recover [financial] damages against any person who . . . supplies her with necessaries. . . This rule . . . may seem harsh, [but it] is based upon the ground that it is wrong to harbor the wife by doing any act which will make it more easy for her to continue in the violation of her conjugal duties. [FN2]
To This Day: Non-Molestation Clauses
The husband’s conjugal rights to his wife explains why most separation agreements include a clause that says neither party shall molest or bother the other, nor attempt to compel the other to cohabit or live with him or her. These non-molestation clauses stem from a time when men were entitled to their wives’ conjugal rights and could physically go and “repossess” their wives. These non-molestation clauses still exist because lawyers tend to leave historic language in agreements. If an attorney updates a document to remove historic language, it raises suspicion and the other attorney wonders why the “standard language” has been removed. Although the non-molestation clauses remain common, the state courts officially applied the doctrine of necessaries to both husbands and wives in 1987. [FN 3]
FN1 Forsyth Memorial Hosp., Inc. v. Chisholm, 342 N.C. 616 (1996).
FN2 Pool v. Everton, 50 N.C. 241 (1858), citing Barbee v. Armstead, 32 N.C. 530 (1849).
FN3 N.C. Baptist Hosp., Inc. v. Harris, 319 N.C. 347 (1987).
Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2019. ©
