DIVORCE LAW

Evening Post, Volume CXX, Issue 135, 4 December 1935, Page 20

DIVORCE LAW

REFORM NEEDED

GRIP OF DEAD HAND

FAIRNESS AND GOOD

SENSE

Is it not almost time for something to be done about the law of divorce? The question may be asked by those who, from choice and for the moment, desire to avoid "party questions," writes Lord Hewart of Bury in the "Daily Telegraph.' '

Many recommendations have been offered, and some legislative proposals have been made. But nothing of importance towards the solution of the problem appears to be accomplished. Only two or three days ago the distinguished Bishop of Salisbury, whatever his general opinion about divorce may be, was deploring tha "tricks and subterfuges" which are now so often employed.

The problem—if it is a problem—is, i in concise terms, whether and how, in ' the interests of the body politic, and : especially in the interests of patient ' and long-suffering womankind, the pro- i visions of the existing law should be amended and extended? There- is something a little odd, and perhaps grotesque, about the atmosphere of mystery and unreality in which the topic is sometimes sought to be enveloped. The late Lord Buckmaster, at any rate, was' not at all afraid of it. s A CHOICE OF EVILS. A great man observed once for all the mischief which may arise from net distinguishing things that ought to be distinguished, and confounding things that ought not to be confounded. The circumstances which give rise to divorce—in other words, which mako divorce appear to be a choice of evils —may, indeed, be grievous or even tragic. But it does not take a Selden to perceive that that fact does not make the law itself tragic. A cold in the head may perhaps lead to painful or even fatal consequences. But thers should be ' nothing fatal about the choice of a hot-water bottle. By all means .let'the topic 01 divorce be approached with suitable solemnity —-indeed, with portentous solemnity if the temperament of the patient, or'th-2 physician, should so require But let it be the right topic, and let not the remedy, or the palliative, be confused with the disease. ■ TASK. BEFORE THE JUDGE. The King's Bench Judge who is not born to divorce and has no desire to achieve divorce, but has divorce thrust upon him, may with a full sense of responsibility try his 100 or 150 divorce cases in. an "off day" on circuit, with a stop-watch near, his hand. .. But does he really undergo agony of mind, or feel his .hair growing whiter, because he has to face again and again the searching , and, , indeed, momentous question, "Ought I to believe this chambermaid?" Or does he find the burden of life almost greater than he can bear because of the doubt, recurring often to swift thought. "Is this page in the hotel register a forgery, a palimpsest, or the real thing?" It was without doubt a sad exaggeration to say that the average pass-man, if he rose> early, had a light breakfast, and brought' his mind to bear upon the matter, could between Saturday and Mdnday get up the whole: English law ;of divorce, including the subtle (but not elusive) distinction.between "alimony" and "maintenance," an "intervener" and a "co-respondent/1 Nevertheless there do seem to be some practitioners in the Divorce Court who, in spite of the anxieties of a troublesome world, remain reasonably cheerful men, and are able to sit up and take a little nourishment. "Sunt lacrimae rerum" —also "crocodilorum." Things have their tears— and. crocodiles have theirs. In Papua and among Roman Catholics marriage is said still to be indissoluble. Nobody in England seeks to make divorce compulsory. But in o proper case why should it be refuSed? What, one may ask, is the essential nature of that delicacy and good taste, that instinctive decency, self-respect, and social duty which make it necessary or desirable that an innocent woman —possibly delicate and probably sensitive —should be chained for a lifetime to a habitual drunkard (for example) or a "drug fiend"; to a hopeless lunatic or a convicted but reprieved murderer; to a habitual criminal or a monster of cruelty; to a husband who has to all intents and purposes deserted her, or has compelled her to regard him, on strong and sufficient grounds, with an invincible aversion? Unfortunately, the dead hand of obsolete or obsolescent law still holds in a tight grip a few things which are of consequence. Perhaps it is not vouchsafed to everybody, whether in Holy Orders or out of them, to appreciate the full sublimity and beauty of the 'doctrine that if one or two married persons is guilty of misconduct there may properly be divorce, while if both are guilty they must continue to abide in the holy estate of matrimony MORAL "OBSTACLE RACE." The conception of the law and practice of divorce as a kind of moral "obstacle race" may be magnificent. But it •is -not peace. The Scripture says, "Thou shalt not commit adultery."- The law and practice of divorce, as at r resent settled, seem to pluck the trembling ear of the husband or the wife who is finding life intolerable, and to repeat the Commandment—omitting the-word "not." The problem is, of course, one of no small importance. Yet its dimensions ought not to be exaggerated. Extremely few marriages in a thousand, it may be hoped; are irretrievably unhappy. Here, as elsewhere, the exception tends to attract more public attention than the rule. Yet that circumstance offers not the smallest reason why the exception should be treated unfairly. It makes to be sure, not merely some difference, but all the difference, whether marriage is regarded as a prison from which it is a matter of public duty to make it exceedingly . difficult for the prisoner to escape, or as a mode of good life containing unique and infinite possibilities •of virtue and happiness which ought not lightly to be denied or destroyed. It is so easy for so many persons to pass by troublesome questions, after the manner of the prudent Levite, on the other side. Nor does it require any : high degree of gallant or cheery Stoicism to put up with the toothache of somebody else. "For better, for worse," no doubt. But there are limits. "Est modus in rebus, sunt certi denique fines." STATE AND FAMILY. It is sometimes said that the. State, as distinguished from the individual, has an interest in the institution of marriage, and must, therefore, especially for the sake of the family and the children, watch with a jealous eye everything that has to do with divorce, j But what is there that is singular or remarkable about that incident? In like manner the State has an interest lin contract, in tort, and in crime.

What is the true inference from those facts if it be not that the law should, therefore, be in strict accordance with reason, fairness, and good sense, and not opposed to them?

It may be that professors of philo-

Sophy are still concerned, as Aristotle was, with the question whether the State is logically prior to the individual and the family. But nobody is likely to challenge the doctrine that, if the State came into existence in order to make life possible, it continues to exist in order to make life good. Will anybody suggest that the individual is utterly, and in all circumstances, to be subordinated to the State and the family?

I There is authority, and even ecclesiastical authority, for the proposition that the doctrine of the indissolubility of marriage cannot be proved from the New Testament. Is there any other j quarter from which it can be proved? | And, once it is understood that marriiage may sometimes be dissolved, is it jnot a pure question of practical wisdom, in full view of all the relevant circumstances, to determine in the interests of all what the proper and sufficient grounds for divorce ought to be? MARRIAGE CONTRACT. Today the "open sesame," and the only one, is a particular kind of misconduct. But the underlying reason for that doctrine appears to be that misconduct of that kind is something which defeats marriage. Just as, in commercial law, after the making of a contract, there may be "frustration" of the business enterprise or adventure, so, too, in a totally different sphere it is recognised that there may be "frustration" of the contract of marriage. And, if "frustration" be the ground of the doctrine and the basis of decision, for what good reason is "frustration" in fact to be ignored in law except in cases where it proceeds from conduct of one particular kind? Is there any transcendental magic in the statutes of 1857, of 1875 of 1923 or of 1925? Slight changes for the better have, indeed, been made. Some old law has "gone where the old moons go." But what <;ound objection, it may be asked, v there to a fearless survey of the whole area of "frustration," unless, indeed, marriage is to remain, for the unhappy minority, what John Milton called "a familiar and cohabiting mischief, without refuge or redemption"? Some years ago when, in happier days, the question arose whether the Government should give in the House of Commons what are called "facilities" for the discussion of a Bill concerning divorce which had somehow got past Scylia and Charybdis in: another place, Mr. Bonar Law,' then' Leader of the -House; permitted himself- to' make one of his extremely rare cynical remarks. He said he understood that, if people really wanted divorce, they did without it. Is that condition of affairs desirable? Is it really in the interests of the | family.or the State? My discerning (and frequently apostolic) friend, Mr. A. P. Herbert, seems to take the view that; divorce by "mutual consent" is not "practical politics" in England. Theoretical law it certainly is not. But is it not already, after a fashion, "practical politics"—on the terms that one of the parties consents to supply the other with the irreducible. minimum of .conventional evidence? Yet the good :citizen can hardly contemplate with a tranquil mind so grave a mischief. RELIEF FOR CRUELTY. Cogent: testimony upon the need of amendment in divorce law was offered not long -ago in the address of an experienced' president •of the Law Society; .;-.'- ---"It is only after an experience of over 40 years.of the operation of the present law," Sir Heginald Poole said, "that I have come to the conclusion th&t i the,iight,.of the Divorce Court to , dissolve J. a marriage should be ex-tended-beyond its present limits." .It is true that he was not prepared to go all the way with some of those whom he";described as "the .apostles of reform." But he emphatically supported the proposal (for example) that the existing law should be so amended as to include the power to "relieve a spouse from the burden of life with another at whose hands he or she has suffered 'persistent and aggravated cruelty.'" Sir Reginald Poole pointed the contrast between the legal consequences of "one isolated act of infidelity"—no matter how "utterly repentant" the defaulter—and of prolonged and grievous ill-treatment: "A man may physically beat his wife, may abuse her before his children and the servants, may render her life, to use a familiar phrase, 'hell on earth,' and yet she can only obtain a judicial separation from him' which does not enable her to remarry, and ' which only permits of her obtaining during joint lives an unsecured periodical payment of money, so that if her husband dies a week after the decree she and her children may, get no financial provision and find themselves penniless." The position of such a woman is obviously intolerable. It easily leads, as Sir Reginald suggested, to a general suspicion that the separation was due to her own fault. More than that, when the torture to which a wife is subjected by her husband dees not take the form of actual physical violence, sne is not able to obtain so much as a judicial separation "unless she can prove by medical testimony that his conduct has injured or. tended to injure her health." In fairness, also, it is obvious that the blame is not invariably on the side of the man. "There is a case of a drunken woman who neglects her home duties and her children; there is the case of a jealous woman who suspects her husband's every move —in short, there are cases where the blame rests entirely upon the wife, and in which the husband ought to be placed in the position of being able to get the marriage tie dissolved." Sir Reginald Poole added the valuable footnote that he was not drawing on his imagination for stories of married misery. "They are," he said, "the subject of frequent and actual personal experience in the course of my practising career." DIVORCE JUDGES OF FUTURE. ; Changes in the substantive law of ■ divorce appear to be quite'inevitable. 1 As for procedure, by way of.diminish- ' ing difficulties and inequalities, especially as between rich and poor,. it is ; conceivable that 19 divorce cases out | ! of 20. with all their puzzles, may per- • haps before very long be heard and determined gratis by those diligent and • accomplished gentlemen, the sti- ■ pendiary magistrates, the county-court judges, and the chairmen of quarter sessions who happen to be lawyers.

Sketches by a bank manager, a blacksmith, a departmental store chief, a grocer, and a printer were recently on show at an exhibition of work by members of the Scarborough Sketching Club.