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THE RECENT HISTORY OF DIVORCE
late Sir Frederick Treves, His Honour' Judge LAW REFORM.
Tindal Atkinson, Mrs Tennant, Mr Edgar
Brierley (the Stipendiary Magistrate of ManThe present position of the divorce con- chester), and Mr J. A. Spender (till recently the troversy in England is one of considerable editor of the “ Westminster Gazette”). Of these interest, and it may be worth while to give a nine, two-Lord Gorell and Lord Guthrie-held short account of the recent history of this high judicial office in England and Scotland question. In 1909 a Royal Commission was respectively, and a third, Mr Tindal Atkinson, appointed to investigate the whole subject, is a County Court judge. The majority report and after three years' work, in the course of made very extensive recommendations involving which they examined a very large number of both substantive law and procedure, from witnesses drawn from all classes in the country, which I select the two most important, namely, they issued their report in November 1912. (1) their proposal that the grounds of divorce Unfortunately, they had not succeeded in should be the same for both sexes ; and attaining unanimity, and accordingly the report (2) that there should be five new grounds of consisted of two parts — a majority report divorce, in addition to those recognised by signed by nine members of the Commission, the present law. The grounds proposed were and a minority report signed by thrée. It may these :be convenient to dispose first of all of the latter by reminding the reader that the minority
(i) Wilful desertion for three years and concurred in one or two of the more conserva
upwards. tive reforms recommended by the majority,
(iii) Incurable insanity, after five years' but made no independent contribution to the
confinement. discussion beyond reiterating the views which
(iv) Habitual drunkenness found incurable ecclesiastical authority has always held on
after three years of separation. this subject. So far as reform was concerned, they were willing that the two sexes should be
(v) Imprisonment under a commuted death
sentence. put on an equal footing in regard to divorce ; that an order of presumption of death, entitling A Bill was introduced in the House of Lords the petitioner to remarry, might be granted by Lord Gorell, in order to give effect to these where the other party to the marriage had not recommendations. But the war intervened, been heard of for seven years; and that certain and the Bill had to be dropped. additions should be made to the grounds upon The next step in the matter was taken on 5th which a decree of nullity could be obtained. November 1918, when Lord Buckmaster introBut they were opposed to any addition to the duced his Separation and Divorce Bill. grounds of divorce, except in so far as they proposed to make desertion persisted in for a concurred with the recommendation of the period of five years a ground of divorce; to majority in regard to presumption of death. abolish, in this class of case, the intervention And that came very far short of recognising of the King's Proctor, and so render the decree desertion as a ground, since the majority had nisi unnecessary; and to allow poor persons advocated it as a remedy supplementary to to bring divorce suits in the County Courts. the divorce they were prepared to allow in the The Bill came up for second reading on 12th case of wilful desertion. The minority report November 1918, the day after the Armistice, bore the signatures of the present Archbishop and it was thought hardly appropriate in these of York, the late Sir William Anson, and Sir circumstances, when the minds and hearts of Lewis Dibdin. The views of the eminent men were turned to very different reflections, to churchman who occupies the See of York are proceed farther with it at that time, and, well known. As regards the two others, it is, accordingly, in a thin House the motion for perhaps, not a wholly irrelevant consideration second reading was defeated by 39 votes to 29. that Sir Lewis Dibdin is an ecclesiastical The General Election of 1918 followed, and the lawyer and Dean of the Arches; while of Sir question was left over to be dealt with by the William Anson, Lord Birkenhead remarked (in new Parliament. the debate on second reading of the Matrimonial Parliament met in February 1919, and was Causes Bill, 1920) that "his life had been dissolved in the month of November 1922, perhaps a little secluded from some of the consequent upon the break-up of the Coalition. issues which to-day require decision at your During the four sessions it sat, two measures Lordships' hands.
dealing with this topic were introduced in the The majority report bore the signatures of House of Lords : the first by Lord Buckmaster the late Lord Gorell (the chairman of the on 24th February 1920; and the second by Commission), Lady Frances Balfour, the late Lord Gorell, the son of the chairman of the Mr Thomas Burt, the late Lord Guthrie, the Commission, on 22nd February 1921. Both
these Bills were accorded a third reading in the able simile, In the days before the motor House of Lords by substantial majorities, but cai robbed our streets of most of their interest in each case the Government refused facilities and much of their safety, it was not uncommon in the House of Commons, with the result that to see the carriages of the wealthy preceded and the Bill was dropped.
accompanied by picturesque Dalmatian hounds, None the less, it may not be wholly un- which were vulgarly called
were vulgarly called 'plum-pudding profitable to examine a little more closely the dogs.' The vain beasts, bounding in front details of those Bills which received such a of the horses, doubtless supposed that they prolonged and careful consideration in the directed the carriage which they preceded, and House of Lords. The first, the Matrimonial all the time they were themselves strictly held Causes Bill, 1920, was a much bolder attempt to their route by the driver on the box. That than the measure of 1918. In the words of its carriage-dog theory of leadership seems to me author, it “exactly embodied the whole of the very popular at the present time. It may suit recommendations made by the Royal Com- democratic politicians, but it is, in my judgmission," of which the most important were ment, incongruous with the character, and those relating to the equality of the sexes and inconsistent with the influence, of an English the additional grounds of divorce. It came up Bishop. Therefore, I do not concede that for second reading on the 10th of March, the any reflection on a Bishop's true leadership debate was adjourned to the 24th of March, and, is involved in the circumstance that he after a discussion of the greatest interest and happens to find himself for the time being in ability, it obtained a majority of 48 (93 for a minority.” and 45 against). The third reading was also As has been stated above, Lord Buckmaster's carried by a very substantial majority, 154 to Bill passed the House of Lords by a large 107.
majority. Unfortunately it went no farther, I hope it may not be open heresy for a member and the results of a session's work were thrown of the Liberal party to express his respectful away. The measure introduced by Lord admiration for the debate that took place in Gorell in the following year was much less the Lords both on this Bill and on the measure ambitious in its scope, proceeding more or less of the following year. Of the speeches de- on the lines laid down in the minority report. livered during these two sessions, I personally It provided that there should be one law for prefer, and in that order, those of Lord Buck- both sexes, and that, where one spouse had master, the Earl of Birkenhead, and the Lord, not been heard of for seven years, the other Bishop of Durham. But the whole discussion should be entitled to obtain a decree of nullity was on an extraordinary high level, and on on the ground of presumption of death. An this particular topic, requiring a wide knowledge amendment was moved in Committee, however, both of law and of history, it is doubtful whether by Lord Buckmaster, to add desertion for three any other legislative assembly in Europe could years as a ground of divorce, and accordingly, have equalled it. One would like to draw when the Bill came up for third reading, it attention particularly to the speeches of Lords contained no longer one ground of divorce, viz. Buckmaster and Birkenhead on the second adultery, coupled with a special provision in reading of the 1920 Bill, and of the Bishop of the case of presumption of death, but two Durham on the third reading of the 1921 Bill
. alternative grounds, adultery or desertion. In Lord Birkenhead's speech is reprinted in his this altered shape it lost the support of the “ Points of View.” As regards the Bishop of Archbishop of Canterbury and the other
" Durham, it would be a pity not to quote the ecclesiastics, who had been prepared-without passage where he deals with the claim of the enthusiasm—to support a Bill which did not Bench of Bishops to be the supreme leaders go outside the recommendations of the minority of the Church. Here it is : “We Bishops are report. It nevertheless succeeded in obtaining sometimes described as the leaders of the a majority of 39 votes (87 for and 48 against). Church, and I
sense the But this measure also had to be dropped, leaders we must be. It is well to enquire in because it was found impossible to obtain what sense we are leaders, for there are two facilities in the House of Commons. In the conceptions of leadership generally current 1922 session no further step was taken, and, among us at this time. The one aims at when Parliament was dissolved in November, educating those who are led, and the other is the prospects of reform were as remote as content to echo their opinions. I have some before. In the short-lived Parliament which times thought that democracy favours the met in February of last year and was dislatter, rather than the former, conception of solved, with indecent haste, in the following leadership. None the less, it does not com- November, the first step was taken on the mend itself to me as either dignified or valuable. path of reform. A Bill was introduced by “Let me illustrate my contention by a suit- Major Entwistle, then as now member for the South-West Division of Kingston-upon- 37 in a thin house (88 for, and 51 against). Hull, which gave women equal rights with men, Lord Buckmaster then stated that he would so far as the Divorce Court was concerned. The not ask their Lordships to undertake the task Bill had few opponents in either House beyond of discussing the Bill in committee, unless they that picturesque survival, Lord Braye, who has obtained from the Government a promise that for many years resisted all and every attempt facilities would be granted in another place. at reform, and it received the Royal Assent on But the Lord Chancellor, who replied for the 18th July 1923. It is, however, still true to Government, would give no promises. There say that the labour and research, which have in the meantime the matter rests, and we may been bestowed over a period of fourteen years now turn to consider, briefly, the changes it upon this question, have yielded practically no is proposed to make. result. The injustice which Major Entwistle's Of the five additional grounds advocated by Bill sought to remedy was one of form the Commissions one, that of desertion, seems rather than of substance, because under the to call for special comment. And here a law as it then stood a wife whose husband Scotsman is entitled to congratulate himself had left her and gone to live with another upon the circumstance that this remedy, which woman might obtain what was called an order it is now proposed in the face of obstinate and for the restitution of conjugal rights. The fanatical opposition to graft upon the law of disobedience of that order was treated as England, has been available in Scotland for equivalent to desertion, and, along with the 350 years. (It was sanctioned by the Scottish adultery, at once enabled her to obtain a statute, 1573, cap. 55.) Desertion, that divorce without the necessity of proving is to say, wilful desertion, stands in desertion for two years. Upon this procedure respects apart from the other four grounds, Lord Buckmaster commented during the debate which were recommended by the Commison the Separation and Divorce Bill of 1918 (12th sion and incorporated in the Bill of 1920. November): "I do not think the Courts have Unlike, say, cruelty or habitual drunkenever been called upon to administer such a ness, it presents no difficulty in definition : farcical jurisdiction since the days when they and it also differs most materially from the abolished the collusive suits for the purpose of other proposed grounds in that its very essence barring entails." These strange proceedings consists in the refusal by one of the parties to are now no longer necessary; but, although the a marriage to recognise the subsistence of that Act has made a change in the direction of marriage. From this point of view, it is percommon sense and simplicity, which abolishes haps a more absolute breach of the marriage & preposterous legal fiction and substitutes for contract than adultery itself, because it is a it an intelligible rule of law, yet, so far as the deliberate repudiation of that contract by one parties themselves are concerned, it makes of the parties to it. Drunkenness, insanity, little difference in practice, except, in certain cruelty, crime—all these are offences or miscases, to simplify the procedure in divorce suits, fortunes which may or may not justify a claim and, possibly, reduce costs. This is a very poor to divorce, according to the view that may be and unsatisfactory result for the efforts that taken of these matters; but certainly they do have been made. For apart from this Act, and not-and desertion does—constitute in themthe rules 1 under which petitions for divorce selves a wilful evasion of the marriage bond. may be heard by the Assize Courts, not one Without taking sides, one can very easily see of the recommendations made by the majority the reasons for and against the others. But of the Commission has yet been given effect to when one turns to consider the attitude of by Parliament. Yet, again to quote from Lord those who admit adultery and deny desertion, Buckmaster (House of Lords, 10th March 1920), comprehension becomes very much more surely it is “impossible that a report of such difficult. The ground of adultery is supposed value, signed by such men, should simply be to be based upon a text in St Matthew, which thrown on to the rubbish-heap." In the present has been the source of many controversies. It Parliament, Lord Buckmaster has introduced is to be found in the 31st and 32nd verses of yet another Matrimonial Causes Bill, which the 5th Chapter of St Matthew's Gospel, which he describes as an exact reproduction of the (for the sake of reference) are quoted here both measure the House of Lords passed four years in the original Greek and in the translation ago; and this Bill was accorded a second given in the Authorised Version. reading on March 12th, securing a majority of
31. “It hath been 31. Έρρέθη δε ότι δς
said, whosoever shall αν απολύση την γυναίκα 1 These rules form Order 36A of the Rules of the
put away his wife, let Supreme Court, and came into force on 12th July 1922 :
αυτού, δότω αυτή αποσ
τάσιον" they were made in virtue of the Administration of him give her a writing Justice Act, 1920, section 1.
32. “But I say unto 32. éyù dè Néyw ýpir quoted a passage from a sermon preached in you, that whosoever ÖTLÓs av åtolton Westminster Abbey by Canon Charles, shall put away his Tùy yuvaika aŭtoû, tap of the most learned men in England," where wife, saving for the EKTÒS Lóyov topvelas, he said that “Christ, by accepting the Jewish cause of fornication, ποιεί αυτήν μουχάσθαι" | laws relating to the adulterous wife and concauseth her to commit kai os èàv åmodedouévnu fining His own enactments to less grievous adultery, and whoso- γαμήση, μοιχάται. offenders, allowed the right of divorce on the ever shall marry her
ground of adultery, as well as subsequent rethat is divorced com
marriage on the part of the guiltless person mitteth adultery.”
concerned, but forbade divorce on any lesser
ground.” The divorce law of Scotland, apThe reader will note a very curious feature in proved by the National Church after the these two verses. They mak eference Reformation and followed without interruption whatever to the wife putting away the husband. during a period of three and a half centuries, Earl Russell pointed this out in the House of has already been commented upon. I turn to Lords (10th March 1921), and proceeded to consider the case of Ireland, and there I find that quote from a former Bishop of Oxford who no one can obtain a divorce, except by the declared, in 1856, that he could find no very special and extraordinary procedure of a shadow of a foundation in the Gospel for the Private Act of Parliament. According to Lord extension of the right of divorce to a wife. It Braye (House of Lords, 28th April 1921): "In was distinctly stated that a husband might Ireland no divorce court could ever be set up in put away his wife, but no general principle was any circumstances, and even the enemies of asserted in the Gospel which would equally Ireland are bound to confess that the purity of entitle a wife to put away her husband. the Irish race is one of the lights of the world.” Accordingly, if the words of St Matthew are Confronted with this cleavage of opinion in to be regarded as legislative for all time, a wife the Churches, one can scarcely agree that it is has in no circumstances the right to divorce possible to solve this problem by reference to a her husband. But even apart from this con- bare text from the New Testament. Certainly sideration, opinion is acutely divided on this one would imagine that this text could not be passage. There is, first of all, the difficulty considered authoritative until, at the least, that it does not recur in the parallel chapters the Churches had made up their minds what it of St Mark and St Luke, and great stress has means. As things stand, uninstructed opinion been laid on that. Then the Churches have will probably agree with the Bishop of Oxford disputed bitterly over the interpretation of in 1856 that it denies all divorce rights to these words. The Roman Church has always women. But it is not impossible that a more denied divorce, even on the ground of adultery, reasonable result may be arrived at by conas contrary to the doctrines of Christianity. It sidering the legal nature of the marriage interprets the words in St Matthew as referring contract itself. Looked at from this angle, to separation, not divorce, and alleges in it will seem curious that, where one party to support the consensus of 2000 years.
of 2000 years. The the marriage has repudiated the whole of his Church of England appears to speak with a obligations under it, as in the instance of divided voice on this question. At the second desertion, the other should be refused all relief. reading of Lord Gorell's Bill on 10th March The debates in 1920 and 1921 contained many 1921, the Archbishop of York said that he examples of the extreme hardship and suffering
regarded it as involved in the teaching of occasioned by this refusal, which it would be Christ, and in the principles of the Church, that unnecessary to detail here. But it may be marriage is dissoluble only by death, and that useful to direct the reader's attention to the divorce, carrying with it the right of re- legal aspect of this question, and to point out marriage, is not consistent with that teaching how unfairly this rule works out in practice. or with those principles. On the other hand, Take the case of the husband, who deserts his the Archbishop of Canterbury declared in the wife and children and goes to the Colonies. In House of Lords on 22nd June 1920, that: all probability (at least in most cases) he lives
We (i.e. the opponents of the 1920 Bill) with another woman out there, and, if the
are convinced that, regarded largely, the wife could prove that, she would under the principle which I have laid down is sound—I present law be entitled to a divorce. But the mean, the principle of its being only in the cost of obtaining such evidence is considerable, case of unfaithfulness, or fornication, that and poor people cannot afford it. The result relief from the marriage bond is allowed by is, since the natural remedy of divorce is denied the teaching of our Lord. It is the them, they are deprived of the relief which principle laid down by our Master in the wealthy people obtain quite easily by making Sermon on the Mount.” And the Archbishop the necessary investigations abroad.