DIVORCE IN BRITAIN

Evening Post, Issue 29, 4 February 1935, Page 7

DIVORCE IN BRITAIN

a- judge m coLLusibN

"DANGER TO JUSTICE"

* 'The. eVil consequences -,that would attend any.-.suggestion of -winking at collusiou-ibetween the: .' parties to divorce suits were; pointed out by Sir "^ .' B?7 d;;K©rriman, president of - the Probate- Divorce, and Admiralty Division,, -when/he^^'delivered 'the^presidential address;at the Birmingham Law Students' Society '.s / annual dinner," says the f.Birmingham Post." -.;.' "Ashas'.r.often been said," Sir I". Boyd'Merriman remarked; "it is important not only that justice .should be done, but that it should be 'seen to be done.' -.■ ■ : .' •"■

"The division over which I have the honour for the moment to preside deals with mattorsof more .than domestic importance; the.^.disposal of .property after death, marriage, and the safety of shipping pnHhe Seven Seas. -,0n the Admiralty" side,'as Englishmen, we may take, pride in' the fact that in more than half the-cases one party is a foreigner, and in something between a tenth and a fifth both are foreigners.^ "We like to think that this is because it is ■recognised throughout the •world that in England 'justice is seen to be done;*; But I have never heard it suggested that' the international prestige of the Admiralty Court would be raised if Judges were expected to try, for the personal convemeßce of -the parties, and on 'fictitious evidence, the • question of liability for a sham collision, or to adjudicate on a claim, supported by feigned contracts and false invoices; for damage.to'a cargo which was never, loaded. .".:. ■"'•< ' ■ "INOONCEIVABLE." '-,"': "By the.Judicature Act'-of 1925 the Court is obliged to.. satisfy itself, on the evidence, that a petition for divorce has not been presented or prosecuted in collusion with either of the respondents.. Where such- collusion :is shown to exist, the Court is obliged by law to dismiss the petition. ;- ; '' ; " " If- respect for; the administration-, of justice, is to be1 maintained, it is in: conceivable that : the "most law-abiding country in the jvorld, should, compel its Judges;to grant-;a; '- remedy at law as for a real in jury- upon a common, agreement between.the parties to effect.their object by foisting -a-fraud upon -the Court. -.-■:. '-. .',•'■■. -'.l-j■'■■':''•]', ■.■■'.■■'..'--. 1 ' When, in )1923, -Parliament enacted that a .decree of divorce 7 might be pronounced, on proof qf: a single' act "of adultery by a husband, ;it undoubtedly opened : still wider, the -door to::a' demand for the serviqes.qf the'shaia cb: respondent', "who .would be prepared to lend •' herself,; or, Ids's ■■frequently,.'him-self,•to-.theiappeaTahce of the fief of adultery;" '^-x'y:':'- ■'■'■■■'■■: "■'■ ■'■■: '.:\.' h ■''-"-: ■ "rrbm^what: one'see^: on'the. stage' and in.-print,;it'appears'to bejassumed that tfiis; is jthe normal Toutine 'by wHch^ivpM6-'w.;>6b'te^ed.vV'-Biit\.'even' if" this^rb^edure^is^pWvalent. in- a cerr tain prop^tion|of'a-limited ■ class; of cases, -r'am-. satisfied that; it represents a very;s'matll■•jpr'oportion of the whole. "My ; .cpncerh-is ; to point out the dani ger to [the^d'niinistration of. justiceaf it'eame'to'be-recognised as a' normal and proper ;:pri)cedure«:.'-In this connection I am^pften'asked whether it is not in the iiterests of that a husband or wifershduld adopt such means ■ito .obtain .a rather than commit the a^ttial fact of adultery. This is a false a,ritithesis. In.truth,'the"contrast is not between actual and sham adultery, but; .between a real and a feigned matrimonial injury. "It-is not the business of a Judge Jo : decide whether the law. is at variance with, public' opinion, or to give decisions contrary to law on some estiijriate of -his: own, or of the. Press, as to-what public opinion demands that Itbe law should be.- That way lies Jshaos.-: -■ ■ '■ ■■ ■'" •■". .... ■ .■ am ;not insensible to the -hardBhips of 'unhappy marriages, nor,do. I minimise the interest of the public in status, of marriage. But individual spouses ■ pass away; and the State, through' Parliament,' can; measure, and jeary, the;extent"of its interest in the Juaintenance ■■■. of marriage. ' ''■ There is • something1 that transcends, fend -is?more abiding than either ;of these, considerations^ and that is that gustice.: should not' meiely be done, biit should' be' seen to -be done. How can ■this -be if' the public is' taught to •. exipect.that its Judges shall be blind to a conspiracy of'litigants to present a found; on fraud?"