Duhaime's Law Dictionary

Consortium Definition:

Companionship, love and affection and intimacy between husband and wife within a mariage.
In the common law, consortium was a duty owed by a wife to her husband and vice versa and a breach of that duty could lead to an action in tort law for loss of consortium, and damages.

Some jurisdictions even attempted to codify the tort action of consortium such as this, from the Alberta Domestic Relations Act (repealed in 2005) at §43:

"A person who, without lawful excuse, knowingly and willfully persuades or procures a married person to leave that married person’s spouse against the will of that married person, whereby the married person is deprived of the society and comfort of that spouse, is liable to an action for damages by that married person."

In Best v Samuel Fox, Justice Birkett wrote:

"Companionship, love, affection, comfort, mutual services, sexual intercourse — all belong to the married state. Taken together, they make up the consortium; but I cannot think that the loss of one element, however grievous it may be, as it undoubtedly is in the present case, can be regarded as the loss of the consortium within the meaning of the decided cases. Still less could any impairment of one of the elements be so regarded. Consortium, I think, is one and indivisible. The law gives a remedy for its loss, but for nothing short of that."

In Maliewski, Justice Aylesworth wrote:

" ... blow to the marital honour, loss of the exclusive right of the plaintiff to have sexual intercourse with his wife, serious hurt or some hurt to his family life and those other elements which are commonly lumped together under the term loss of consortium of the wife — her services, affection and society."

In Kungle, Justice Schroeder of the Ontario Court of Appeal wrote:

"The term consortium is not susceptible of precise or complete definition but broadly speaking, companionship, love, affection, comfort, mutual services, sexual intercourse — all belonging to the marriage state — taken together make up what we refer to as consortium. Thus an action may lie against another for depriving the plaintiff of matrimonial consortium, even though there has been no physical debauchment of the wife or even though there has not been any physical separation between the spouses."

Most jurisdictions have abolished the action for loss of consortium preferring instead to require a married spouse to rely on a divorce claim based on adultery.


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