MARRIAGE OR DIVORCE

Dominion, Volume 30, Issue 113, 6 February 1937, Page 22

MARRIAGE OR DIVORCE

A Judge Discusses The Problems

VVIIEN judgment comes to be given on serious proposals for the amendment of the law of marriage, let us make sure that any change to be made shall be beyond question a beneficial change, says Lord Merrivale, former President of the Divorce Division, in the “Sunday Chronicle.’’

Let us bear in mind that marriage is an outstanding means of benefit, and that divorce is its enemy.

“The union of one man with one woman for life to the exclusion of all others.” So Lord Brougham defined marriage a hundred years ago. What gave that pronouncement its value was its concise certainty and the truth it embodied as to the relationship on which our social life is based.

Brougham spoke at the onset of a new era. On rare occasions in the 17th and 18th centuries, and somewhat more frequently in the 19th, marriage had been dissolved by Act of Parliament, but until 1857 there was no other means.

Au experienced judge in “ charge of the new jurisdiction, soon made clear the vigorous strictness with which the powers of the court would be exercised, bearing in mind the public interests involved.

“Marriage,” lie said, “though entered on by individuals, has a public character. It is subject in all countries to general laws which dictate and control its obligations and incidents, independently of the volition of those who enter on it.”

To-day there is clamour of individuals—not of the people at large—for systematic relaxations of the old law. There are loud-voiced dogmatists who proclaim their theories in apparent ignorance of all that marriage involves. An enlightened community cannot consciously permit tampering with the foundations of its well-being. Forty-five million people mean English households numbering some 9,000,000; and it is for these millions of households, with their membership of fathers and mothers and children, that the safeguards of marriage must be upheld. The fact of marriage is their foundation, and it is hap] to think that in any large proportion of them divorce ean be regarded otherwise than with concern, if not loathing. Day by day marriage goes on as of old. The institution holds its own. It is true, though, that in the last quarter of a century a markedly increased resort to divorce involves one of the outstanding problems of our national life.

When recently the representatives of the Church of England, after deliberate consideration, made a definite declaration of the Church's absolute adherence to the institution of marriage as it is, a remarkable criticism was published by an eminent journalist. “The most active party in the Church,” he said, “holds a view of marriage widely at variance with that of the majority of- thoughtful men and women of to-day.” What is the qualification by which these “thoughtful” people are identified?

When it is asserted that the Church “gives its support to standards countenanced neither by the law of the land nor by conscience,” it seems proper to look and see what the standards are which the Church is upholding. Marriage was no evolutionary development of organised outcome of human progress. It is founded on words of Divine authority spoken nineteen centuries ago with a certainty quite unmistakable. Under the Mosaic law the husband could divorce his wife at pleasure. Among the Romans at the time when our Lord’s pronouncement was made, marriage was a merely consensual relationship, Women married in order to be divorced and were divorced in order to marry. The moral and social laxities of Rome not only sapped the strength of a great race, they undermined the power of a mightly Empire. But with-

in the Roman world marriage as Jesus I had commanded it became an institu- I lion and an energising power. Our English people for centuries have stood fast by the ancient principle. All through the controversies of Tudor tiuies the mind of the English people showed an unwavering firmness as to the institution of marriage.

A Royal Commission in 1571 proposed that civil divorces should be granted for certain causes; but the report was never acted on. Indeed, nearly 300 years elapsed before any one of the proposed changes was made.

Our English legislation has always had regard to the outstanding fact that any means of dissolution of marriage affects the common well-being. That was why duties were assigned to the King's Proctor, and that officer goes on year after year taking whatever action can be taken to prevent resort to the discreditable devices by which divorce may be brought about in disregard to legal restrictions. People of experience know that these duties are steadfastly discharged with •the undoubted effect of preventing abuse of the law. Few of the witnesses before theRoyal Commission (on Divorce) of 1909 threw any doubt on the importance of the marriage tic. Police court missionaries from the metropolitan area were all against extension of facilities for divorce. One whose work lay in the Westminster area declared that he did not know of a single instance among the cases of domestic infelicity with which he had been concerned where a person of the poorer classes had expressed a desire for enlarged grounds of divorce —or for divorce.

Since then a new generation has sprung up, and it cannot be said yet that the main problems dealt with by the commission draw any nearer settlement.

What has really to be determined is whether and to what extent changes would be to the good of the community, and, if so. what are the best means of carrying them out. There is a recent statute which has prevented headlong marriages' of the very young. Resort to Scotland to get married is not frequent now, but it does happen. It could be put an end to by declaring such transactions void. More serious than'such tricky proceedings is a laxity which arises from the non-existence of any proper provision for publicity. The calling of banns may or may not inform the persons concerned in the matter. As to the posting of a notice in the registrar's office —how many people are ever informed of it?

It follows that marriage can easily be brought about without any notice being given to the parents or guardians of the parties., Public notice is easily practicable, and direct notice to parents und guardians could be made a preliminary to lawful nuptials. If marriage were more strictly regulated, due control might well be substituted for the laxity about divorce which tends to increase among the class of people who have much regard for penalties but little for decency. As things are, divorce by arrangement is easily brought about by unscrupulous persons. An undefended divorce suit is a different thing from a suit planned without regard to the law by persons between whom there is no grievance. Lord Mersey has recommended that the guilty party in a divorce suit should be incapable of remarriage.

A more effective deterrent would be to give the competent courts increased power to deal with wrongdoers. Au award of damages and costs may extend some satisfaction to an injured spouse; but it does not take account of public interests. Why should a man who breaks up the home of-another escape the proper consequence of criminal misconduct?

How far the Legislature can go in marriage and divorce legislation without losing the concurrence of the great body of Christian people will no doubt

be anxiously considered as time goes on. No English legislation can be visualised which would legalise caucubinage or polygamy. Whether Parliament shall ever be empowered to sanction conditional marriage in the sense that there might be dissolution of the tie on the grounds of extension set forth in the Majority Report of the Royal Commission will be a matter of keen conflict whenever such proposals are authoritatively made.

Among the grounds of extension, a case involving least difficulty is probably that of prolonged wilful desertion, where that means the disappearance of one of the spouses. In some of the worst cases of hardship arising from wilful desertion, the missing person cannot be presumed to be dead without the risk that on reappearance of the absentee a second marriage must be regarded as bigamous, and is, in the legal sense, "null and void.” There is herein an oppressive hardship. It would be avoided if in proper cases, on proof of relevant facts, the respondent iu such a suit might be declared civilly dead, and the petitioner his lawful widow. An incidental effect would be to vest in her any assets to which on his death ■intestate she would become entitled, and to make the will of the absentee an effective testamentary disposition. Nothing in the law is more absolutely undefined than “cruelty.” Words, looks, acts not involving personal violence, all may be evidence of “cruelty” in the sense iu which that term is used in matrimonial causes. To set it up fictitiously, or to provoke it wilfully, is perfectly easy for unscrupulous people who have a sufficient motive. The notion that a spouse conjugally faithful will break into acts of real cruelty is hard to conceive.

Cruelty, too, has its appropriate penalties, and as between husband and wife they might possibly be made more severe than in other cases. If what is called cruelty is to be made a by-way for divorce, some remarkable developments may be looked for.

Habitual drunkenness, if it springs from evil living, is a vice 'against which the law makes some provision now. If it has real relation to the marriage tie it commonly has reactions there which give normal grounds for divorce.

If it has not, can it be said otherwise to afford a sufficient ground for dissolving that tie? To make it easier to break the marriage bond than to dissolve a contract of civil employment would supply a Strange commentary on our ways of living. “.Sentence of death, commuted to imprisonment for life.” Death sentence for what offence? Treason, or treason felony perhaps. What if the uuconvicted spouse was an accomplice? What if the offence was of that class in which a wife, though participant, could not be convicted because she must be deemed .to have acted under the influence of the husband? What of a sentence of penal servitude for life? These and many more questions cry out for sufficient answers. One may lie that in cases where the facts warrant the convict shall on conviction be declared civilly dead

Tlie problem of the incurably insane is a most grievous one. Does the infirmity call for pity, though, or for penalties? Who is to pronounce it incurable, and, if mental vigour returns, what is to be the plight of the victim? Little wonder that those who have had to form opinions on this painful topic have more often than not concluded that when a man and woman take one another for husband ami wife it is, as tlie marriage service says, “For richer, for poorer; in sickness and in health; till death do us part.”