CHAPTER I

DIVORCE[2]

The administration of justice in this country is to some extent idealised by the world at large. Certainly, there is honesty of purpose in the word and act of every English judge. But where the law is wrong the most painstaking and conscientious judge can hardly be right. Then, again, for example, where a judge is compelled to combine three distinct and separate jurisdictions in one, as in Probate, Divorce, and Admiralty, the machinery of justice must sometimes tend to clog. It is also utterly incongruous for the same judge to be expected to perfect himself in three subjects so widely different in character. What, for instance, could be further removed from the troubles of a man and his wife than the navigation of ships on the high sea? Probably a liability to collision is the only point in common! Probate is less remote in one sense and equally so in another. It is almost grossly anomalous to run these three branches of law and legal training in the same division, presided over by the same judges. Probate should be shifted to the Chancery Division, Admiralty to the King’s Bench, and Divorce might be allowed a little court of its own.

Before 1858 matrimonial causes were in the jurisdiction of the Ecclesiastical Courts, which by the grace of God and the law of the land are now almost limited to the punishment of ecclesiastical black sheep--a sufficient occupation, perhaps, in itself! Actual divorce, by the way, was only possible in those days by means of a Private Act of Parliament. (This method still applies in Ireland.)

But to come to the law as it now stands, it seems to contain at least two great imperfections, namely, the judicial separation and the dreadful tie between an erring husband and an erring wife. In cases of the latter description, the practice is to prevent the parties to the predicament from mending their ways or improving their hope of happiness, whatever form that hope may take. It also frequently leads to the misfortunes of a third person, who might otherwise escape on a conscionable arrangement. _A_ is the husband of _B_. _A_ commits adultery and his wife does likewise. They then discover their common shortcomings, with the consequence that they forthwith become violently opposed to one another and separate. What is the net result? They are tied together for life; _B_ soon becomes desperate; presently, she encourages many lovers and her last vestige of self-respect disappears. Henceforth, she is a _déclassée_. _A_, on the other hand, ultimately settles his affection on one woman, otherwise blameless in character. He cannot marry her and she drifts into concubinage. Had some means existed to bring the unfortunate marriage of _A_ and _B_ to an end at the time of their original delinquencies, all of these later developments might have been, almost certainly would have been, avoided. The usual inability, therefore, for an erring husband and an erring wife to legally dissolve their union, sows the seed of increasing injustice, which may, and probably does, extend to the punishment of persons who were not parties to the primary condition of adultery. A divorce should be obtainable, as of course, on the application of either party to a marriage, after one year’s domiciliary separation, whether such separation is due to mutual transgression, or merely to the lesser evils of married life. Under such a condition of affairs, the community would be bound to benefit.

The judicial separation of to-day is one of the most unsatisfactory phases of matrimonial law and practice. Let us, for example, assume that _C_ is the husband of _D_. _C_ is a drunkard, a man of loose morals and disagreeable temperament. _D_ is the reverse in every possible respect, a woman of culture, youth and beauty. Her moral sense is exemplary and her conduct is always quite beyond reproach. After a most unpleasant legal experience, she obtains a judicial separation. Her position becomes isolated; she has a living husband, whose name she bears, she has attractions, but she can hold out no hope to a suitor, for she is still legally tied to the man from whom she is legally separated. Could a greater anomaly exist? It is unfair in the extreme. The most she can do, within the narrow limit of her outlook, is to resign herself to a physically unfair position, and await her husband’s death, which may not occur until her youth and beauty have vanished and she, too, confronts the grave. This is the practical outcome of many judicial separations, which ought in all justice to be done away with. Abolition, with an easier method of securing a divorce proper, is the need of the moment.

With all due respect to the King’s Proctor, a somewhat thankless office, the interval--one may call it the probationary interval--which must elapse between the granting of a decree _nisi_ (or preliminary decree) and the granting of the decree absolute (or final decree) should be removed. In Scotland, there is only one decree necessary in a divorce suit. That one decree is final. The law in this country should be altered to resemble the Scotch law in this respect, at any rate. The _entr’acte_ which separates the decree _nisi_ from the decree absolute is generally a great hardship on a perfectly innocent party. It inflicts an un-English penalty which might well be deleted from the law of the land. Why should some drooping little petitioner of the feminine gender, already distraught with the aftermath of acute anxiety, be subjected to a fresh period of tension, prolonged for another six months? Somehow, one wonders why such a flagrant misconception of true justice should remain on the statute book. Of course, were it not for such anomalies, there would be no reason to look upon divorce law as a subtle and mysterious creation of the Devil, or as an involved and merciless contribution to penal literature, but, in its existing state, a good deal of harsh criticism is perfectly fair.

The law of divorce should be a set of social rules applied to the law of nature, and little else. Complicated procedure, or difficulty in obtaining bare justice, is entirely beyond the mark in this branch of jurisprudence. The Crown--one hesitates to say “the State” in these days of attempted Socialism--could confer a practical benefit on the public by reducing the whole law of divorce to a few simple issues, free from the ramifications of torment and irritation which apply at present. A Royal Commission is not needed to unconsciously hide, rather than to uncover, the discrepancies of the law. The process of wallowing in volumes of evidence is confusing to say the least. It is a process, nevertheless, which, it may not be impertinent to assume, is the main fault with the Royal Commission on Divorce. It has sat and sat and sat again. It has heard the evidence of persons theoretically qualified to give evidence on the subject. It has listened, not without impatience, perhaps, to every sort of opinion, some, by the way, of a praiseworthy, and even ingenious character, but a frank contemplation of life as it is would have resulted in a better point of view than all the formal procedure on earth combined. An absence of sufficient consideration, so far as the purely human side of a problem is concerned, must inevitably lead to failure where the subject is divorce--of all things. For instance, as the law stands, what is the result of tying the hands of an erring husband and an erring wife? One of two things. Either the loose condition already illustrated, or the connivance of the

## parties in question, in the matter of a petition. Both are hopelessly

undesirable, even wicked, and, consequently, no honest support can be extended to a continuance of such a legal anomaly. A law which gives any inducement to vice, directly or indirectly, or makes vice an alternative to uncomfortable virtue, unexpected virtue, should be definitely altered to meet the demands of the social system.

There are many other variations arising from the existing state of the law. Suppose a married woman commits adultery and her husband takes

## action to secure a divorce. The six months interval between the decree

_nisi_ and the decree absolute may just frustrate a co-respondent’s desire to marry the respondent in time to give his name to a child of the _liaison_. All these things should be considered, indeed _would be_ considered, if the members of the Divorce Commission were to deal with the whole question from a human standpoint, rather than from a standpoint of apathetic contemplation.

A unique grasp of a tangled skein was recently exhibited by a judge of the Probate, Divorce and Admiralty Division of the High Court of Justice, when a woman who, it was shown, had misconducted herself, was nevertheless granted an absolute decree of divorce against her husband.[3] It appeared that the woman, who petitioned, had passed a very dreadful life, which began by her seduction by her father’s groom. The groom became her husband; she ultimately took divorce proceedings against the man, but lapsed herself before obtaining the final decree. The judge took a magnanimous view of the facts, sympathised with the petitioner in her unfortunate life, and granted her what she sought. The whole course was novel, but it left people with the impression that greater justice had been done in this way than would have been done had the judge refused the divorce. The case is not without interest as a precedent. It savours of benignity and commonsense, coupled with a sufficient disregard for inadequate conventional methods. The prospect of lifting a fallen woman, from a sordid atmosphere to a plane of respectability, no doubt chiefly actuated the judge in his decision. His summing up, indeed, made this perfectly clear.

The existence of the peasant is not, perhaps, intellectually interesting, as a rule, but his predicament, were he minded to take divorce proceedings, would contain some instructive matter. In the first place, his method of attacking such a question would be to petition _in formâ pauperis_. This is more easily said than done, for a tough and wide-awake solicitor must first be convinced that he is justified in giving credit to the would-be litigant. Giving such credit really means that he must be confident that it will be satisfied in due course by the authorities. He therefore considers the facts of the case with more than ordinary self-interest. The influence most likely to induce him to take up the case is the reasonable certainty of success. The anxious divorce candidate must perforce be capable of making his facts very clear and speaking, if he wishes to secure the services of the solicitor. When this feat has been accomplished, he is in a fair way to proceed _in formâ pauperis_.

A singular case of matrimonial difficulty, where the parties were of the lower orders, was recently brought out in the Norwich County Court. The facts arose in a claim, or rather in two claims, under the Workmen’s Compensation Act. It appeared, that a man named Mathew Charles Clarke was killed while working for the Norwich Corporation. Two compensation claims were at once put forward by two women, each woman setting herself up to be the man’s wife. According to the report, Mathew Charles Clarke, the defunct workman, married a woman named Elizabeth Shreeve in the year 1870. This important ceremony took place at Norwich. In 1873, the happy couple migrated to Newcastle, with the two children of the union. The following year they all returned to Norwich, in order that Clarke might go through his annual training in the Militia. The villain of the piece, a Militiaman called James Leech, then appeared on the scene. His initial _rôle_ was that of a friend of the husband. When the Clarkes returned to Newcastle, Leech, most appropriately named, went with them. His status was that of a lodger in the household. The personality of the man must, for his humble sphere, have been great indeed, for, in 1875, we find Mathew Charles Clarke ousted from his house and from his wife’s embraces; ousted, even, from Newcastle. Leech and Mrs. Clarke remained, while poor Clarke was only too glad to get back to Norwich alive. In 1886, eleven years after his departure from Newcastle, Clarke went through a form of marriage, before the Registrar at Norwich, with a woman named Elizabeth Cotton. This woman lived with him as his wife until his death. She did not know, it may be added, that he had ever had any previous matrimonial experience. From 1875 until 1888, Mrs. Clarke and her quondam lodger, Leech, remained at Newcastle. Then, they, too, returned to Norwich. No doubt they expected to make a “good thing” out of Clarke’s death, for no sooner had the man been killed than Mrs. Clarke put in her claim for compensation. Elizabeth Cotton, who had long believed herself to be the lawful spouse of Mathew Charles Clarke, then discovered to her dismay that her alliance was fictitious in law. She, however, persisted in her claim for compensation. No doubt a dramatic scene took place in the County Court, when the two fair relicts of Mathew Charles Clarke, deceased, shrieked their rights at the judge. We have heard of the Rights of Man, but they are as nothing alongside of the rights of women--more particularly of the class in question. His Honour Judge Mulligan, K.C., who heard the claims, was no doubt sorely tried before he was able to say, “I infer that Clarke was well aware of the relations between his wife and her lodger, and would, if he had been a man of means, have employed one of the esoteric counsel in the Divorce Court to obtain a dissolution of his marriage. But he had not the means to go to London, and there is no Divorce Court in Norfolk. The Divorce Act is, in fact, administered only in London, and there only for the relief of a few wealthy persons who suffer from the erotic misadventures of a few others of the same class--for the relief only of rich victims of the naughty rich. So far as workers in the country like Clarke are concerned, the Divorce Act might as well not have been passed. As there was no practical means of dissolving his marriage, the man committed the crime of bigamy.” His Honour concluded by saying, “The Workmen’s Compensation Act does not palliate bigamy; it does not subsidise adultery.” Judgment was given for the mayor and corporation, and both claims for compensation were dismissed. Sordid as this story may be, it seems to forcibly express the necessity for extending cheap divorce facilities to the County Courts. Certain days might be set aside for the hearing of divorce cases, without overtaxing the mentality or the endurance of the learned judges. It might even afford them some trifling reaction from the constant billow of petty money claims.

Public policy in this age certainly supports cheap divorce facilities. After all, there is no reason why a systematic reduction of law expenses should not be brought about in all the courts of the land. As matters stand, the rapacity of solicitors is more to blame than the high fees of well-known counsel. If a solicitor is “skilful in drawing a bill of costs,” his future is assured, as many a client knows to his or her misfortune. The degree of skill becomes apparent by the amount of the bill after it has passed the Taxing-master! The thousand and one details which can be colourably incorporated in a bill of costs, arising out of divorce proceedings, are often a revelation to the professional eye. Every man believes _his_ solicitor to be honest. Let the day of disillusionment be far off!

A matrimonial case of curious interest recently came before the courts. It was an almost unique instance of the length a woman will go, on the force of an impulse. The President of the Probate, Divorce and Admiralty Division, described the facts as “extraordinary.” So, in truth, they were. On February 4th, 1910, a married woman named Dean set out for Olympia, with her sister, Mrs. Smith. They were accompanied by a male acquaintance of Mrs. Smith. It was adduced by the evidence that the husband of Mrs. Smith objected to the “male acquaintance” referred to. Mr. Smith, a commercial traveller, discussed the matter with his wife on the following day. It has since been alleged that there was a scene, in the middle of which Smith threatened his wife with divorce proceedings and divers other ills. Mrs. Smith was naturally very much agitated and appealed to her sister, Mrs. Dean, for a solution of the difficulty. The latter proved herself to be a woman of ready resource, for she replied, “I will say I have misconducted myself with Henry!” (“Henry” was Mrs. Smith’s husband.) Mrs. Smith was very grateful, indeed, and asked her sister whether it would be all right. Mrs. Dean reassured her on this point, and the “plot” was complete. It was then agreed that Mrs. Smith should communicate the fact of his wife’s adultery to Mr. Dean. The upshot of it all was that Mrs. Smith telephoned Dean, without further delay. It was under these circumstances that at an interview, soon afterwards, Mrs. Dean confessed to her husband that she had in fact committed adultery with her brother-in-law, Henry Smith. She, however, refused to put her admission into writing. On February 7th, in the presence of other persons, her mother, sister, etc., Mrs. Dean told her husband that the whole incident was a concoction on her part, and that there was no truth whatever in the recent “confession.” Dean refused to believe her and took steps to petition for divorce. In answer to the judge, at the hearing, Mrs. Dean said that her sister had never believed the confession, and had never accused her of having misconducted herself with Smith. When the co-respondent, Smith, went into the witness-box, he said that he had hardly treated the question seriously. He had heard about the plot sometime in February, and he then and there told his wife and her sister that they must have been mad to have conceived such a thing. The petitioner, Dean, informed the court that he had never known anything about the plot until that day. In the result, the jury found that there had been no misconduct, and the petition was dismissed, with costs.

What is known as the “restitution of conjugal rights” might as a phase of matrimonial law be consigned to the scrap-heap.[4] A certain petition of this class attracted some interest three or four years ago, when a married woman, judicially separated, brought her husband into court as a respondent. Though this story has no legal point, it may perhaps be given here. In a few words, the petitioner, who, it was alleged, was addicted to drink, had gone to Switzerland. She was, as already stated, judicially separated from her husband, and, in consequence, a petition for the restitution of conjugal rights would have been entirely out of the question, unless, of course, the husband had committed some act to render the force of the separation void. The petitioner’s case was that her husband had followed her to Switzerland, and had there had intercourse with her. His story, on the other hand, was that he had gone to Switzerland to obtain the custody of a certain child of the marriage, owing to the mother’s inability to take proper care of it. He denied that intercourse had occurred between himself and his wife. The case was a difficult one to decide, for there appeared to be some foundation for the allegation concerning the wife’s habits. The judge, however, believed this lady’s version and made an order against the husband for the restitution of conjugal rights. The whole case centred round the one point. Did the husband have sexual intercourse with his wife on a certain date at a certain place in Switzerland? The issue was clear enough, but the facts leading up to it were complex in the extreme. The weaker vessel gained the benefit of the doubt. All such cases are more or less unsatisfactory. If there had been a clear divorce, instead of a separation, where these unfortunate people were concerned, the Swiss episode would have been unimportant. Several days of the court’s time would have been saved in arriving at a decision, which, after all, was of small value to either party.

“Among the Romans, divorce did not require the sentence of a judge, and no judicial proceedings were necessary. It was considered a private act, though some distinct notice or declaration of intention was usual. At one period it was the practice for one of the spouses to intimate the divorce to the other in an epistolary form, by means of a freedman, in presence of seven witnesses, all Roman citizens above the age of puberty; and this was no doubt intended to preserve clear evidence of a transaction which was attended with such important effects on the civil rights of the parties concerned.”[5]

This simple means of obtaining marital freedom contains much to recommend itself to the unhappy people who are barbarously tied together to-day, in spite of their mutual antagonism of temperament and desire. In France, the Civil Code authorises divorce on the following grounds: “(1st) Adultery by the wife, or by the husband if he kept a concubine in the common dwelling-house; (2nd) Outrageous conduct or ill-usage by either of the spouses; (3rd) Condemnation to an infamous punishment; and (4th) In a certain limited class of cases by mutual consent, but only upon the conditions and under the restrictions specified, which are of the most stringent character.”[5]

It is interesting to refer to the Scottish law on the same subject,

## particularly when it is stated by an eminent Scottish judge, Lord

Mackenzie, in his work on Roman Law. “By the law of Scotland a divorce may be obtained by the husband or the wife on the ground of adultery, or of wilful desertion for four years together, without just cause, after adopting the forms of the Act 1573, c. 55, so far as these are still required.... In suing for a divorce in Scotland the wife has precisely the same rights as the husband. If she can prove adultery or wilful desertion for four years by the husband, that entitles her to take proceedings for a divorce, in the same manner as adultery or wilful desertion on her part entitles him to a similar remedy.... The action of divorce proceeds before the Court of Session, and the right to institute it is personal to the husband or the wife. As a preliminary, the pursuer is required to make oath that the suit is not collusive. In this and all consistorial actions the summons must be served upon the defender personally when he is not resident in Scotland; yet, upon evidence to the satisfaction of the court that the defender cannot be found, edictal citation will be held sufficient; but in every case where the citation is edictal the summons must be served on the children of the marriage, if any, and on one or more of the next-of-kin of the defender, exclusive of their children, when the children and next-of-kin are known and resident within the United Kingdom; and such children and next-of-kin, whether cited or so resident or not, may appear and state defences to the action.... When the husband sues for divorce on the ground of adultery, he may cite the alleged adulterer as a co-defender, and the court may order him to pay the whole or any part of the costs, or may dismiss him from the action, as may seem just.... In the case of adultery, divorce is barred by condonation or forgiveness, as well as by collusion or connivance. Recrimination cannot be pleaded as a defence to exclude the suit, but it may be stated in a counter-action, as the mutual guilt may affect the patrimonial interests of the parties.... The legal effect of divorce on the ground of wilful desertion under the Act 1573, c. 55, is, that the offending husband is bound to restore the tocher (_dos_), and to pay or implement to the wife all her provisions, legal or conventional; and the offending wife forfeits her terce, and all that would have come to her had the marriage been dissolved by the predecease of the husband. By analogy the same consequences have been extended to the case of divorce for adultery, with this exception, that it appears to have been decided, upon very questionable grounds, that the offending husband in the case of adultery is not bound to restore the tocher.... After divorce, both parties are at liberty to marry again; but the Act 1600, c. 20, annuls any marriage contracted between the adulterer and the person with whom he or she is declared by the sentence of divorce to have committed the offence.”

This extract, though somewhat lengthy, seems to give every essential point of the Scottish law of divorce in a clear, easily-understandable, form. With the exception of the law of 1600, which forbids the subsequent marriage of the defender and co-defender--a harsh and unnecessary condition--Scotland does not appear to be too ill-favoured in her machinery for dealing with divorce. Indeed, there are other branches of Scottish law, on which it is intended to touch in this work, which contain a better perspective of justice than similar branches of law in this country.

Bodies of law grow up by a gradual process, and this gradual process generally tends to blunt the faculties of criticism; the law as it is seems a part of nature, whereas it is often little else than a bad habit!

For persons with a certain taste for legislative phraseology, the existing Divorce Act, 1857, will be found interesting. It is the desire of the writer to suggest certain alterations, or amendments--or the repeal of the Act, with new legislation of a common sense kind to take its place. To summarise in a few words the purpose of this chapter, the requirements of the day seem to indicate the necessity for:--

(1) A Divorce Court, with a judge or judges exclusively occupied with matrimonial causes.

(1a) The transference of Probate and Admiralty work to the Chancery and King’s Bench Divisions respectively.

(2) The granting of divorce to either party where domiciliary separation has existed for one year.

(3) The granting of divorce to either party where both parties have misconducted themselves (in such cases the custody of any children to be shared by the parents--six months out of each year the right of custody to vest in the mother, and six months in the father).

(4) The abolition of the judicial separation; also, of the separation by deed.

(5) The abolition of the petition for the restitution of conjugal rights.

(6) One decree of divorce to be final and absolute at the time of granting--consequent abolition of the existing form, the “decree nisi” and the “decree absolute,” with the objectionable six months’ interval

(7) The system of granting financial provision, _i.e._, alimony, to an untainted wife who petitions, to stand on the present basis. Also, damages against a co-respondent to stand.

(8) The elimination from a petition of the allegation of “cruelty” which now has to be proved by a petitioning wife before she can obtain a divorce. Adultery without “cruelty” to form a foundation for a successful petition.

(9) The donation of powers to grant divorce to all County Court judges, for purposes of expediency in connection with the poor.

These seem the principal points associated with “what the public wants” in this age of a better appreciation of the “nature of the beast”--Man, or more correctly, Mankind.

FOOTNOTES

[2] See Appendix A.

[3] Pretty _v._ Pretty.

[4] “In granting the application of a Paris doctor for restitution of conjugal rights, the judges have made an interesting new departure by fixing a penalty of £4 for every day’s delay in complying with the order of the Court. They consider this the most practical means of bringing the recalcitrant wife to reason.”--_Pall Mall Gazette._

[5] Lord Mackenzie in _Studies in Roman Law with Comparative Views of the Laws of France, England, and Scotland_.

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