DIVORCE REFORM
THE Report of the Royal Commission contains 'no discussion of what may be called the religious aspect of marriage and divorce.' This is a pity, perhaps, although it is difficult to quarrel with it. For the Churches in the present state of opinion to persuade the State to enforce their view of marriage upon everybody, or even upon only their own mem- bers, would probably be disastrous to Christianity in this country. Divorce must be left to the State, but the position of Church and State should be tidied up. At the moment the Churches are allowed some control over marriage, but no control over divorce. People make solemn and binding vows in a ceremony in church, and are then lightheartedly absolved from them by the State. This is quite unnecessarily illogical. Every church marriage should be accompanied by a civil ceremony, and it would then be only the civil contract which the State dissolved by divorce.
`We have conceived it to be our duty,' says the Commission, `to examine the problems before us from the point of view of the State, which has to legislate for all its citizens whatever their religious beliefs may be.' In general the point of view of the State is the same as that of the Churches—ghat marriage is the voluntary union of one man and one woman to the exclusion of all others.' The State has, however, recognised that in certain circumstances it would be contrary to public policy and would inflict hardships on individuals if the marriage could not be dissolved.' The ideal system from the point of view of the State would be one which discouraged divorce except as a last resort, but which also, when a marriage had broken down, recognised that breakdown as a fact. It is in the interest of the State to promote and foster family life. It should, therefore, provide some deterrent to the unnecessary breakdown of a marriage; but, since illicit unions are obviously undesirable, it should not prevent the dissolution of a marriage which has ceased to exist in all but name. In other words, divorce should be the ratification of an accomplished fact— a break-down—rather than a means of accomplishing what is not yet a fact and need never become one.
How does our present system serve these two objectives? Public attention has been focused on the division in the Com- mission as to whether a husband or wife who has lived apart from the marriage partner for seven years should be able to dis- solve the marriage, provided the other does not object. The chief objection of the nine members of the Commission who opposed this proposal was that 'it would entail the recognition of divorce by consent.' Both the objection and the conflict are rather unreal, since to all intents and purposes under the present system we already have divorce by consent. If both parties want a divorce they can get one (without living apart for seven years) unless they are quite unusually scrupulous or suffer from a distressing lack of ingenuity. As Mr. C. P. Harvey, QC, said in a most striking article 'On the State of the Divorce Market' in the Modern Law Review of April, 1953, the only condition precedent to divorce, which cannot be circumvented somehow, is a valid marriage. It is true that we have built up a large and complicated body of law and a large and expensive machine to carry out the law, whereby in theory a divorce can only be obtained if one of the parties has committed a matri- monial offence. But the divorce law and machinery are no more than an expensive and rather sordid obstacle course, which can be successfully completed by all but the most honest—and usually even by them. For those who want them, divorces are now easy; and, whatever its merits, the present system is no deterrent to the unnecessary break-up of a marriage. The only people who cannot now get a divorce are those who have themselves committed a matrimonial offence and whose partners refuse to divorce them either on religious grounds or, as the Commission put it, 'from jealousy, spite, vindictiveness,' or from a combination of the two. The jealousy, spite or vindictiveness, which prevents such a marriage from being formally brought to an end, is often a measure of the extent to which the marriage has in reality broken down. Such marriages are the ones which should certainly be ended, but it is just these marriages which under the present law are often indissoluble. Four members of the Commission thought that it would be desirable in certain circumstances for a marriage to be dissolved when the partners have lived apart for seven years notwithstanding the objection of one of them. There are two main objections to this proposal : first, that a person marrying would know that even if the other party behaved perfectly he could get a divorce; secondly, that it would be an intolerable injustice for an innocent person to be divorced, particularly as he or she might have religious scruples against divorce. The first objection would not in practice be a strong one, since in nine cases out of ten there are infinitely easier methods of getting a divorce than living apart from one's husband or wife for seven years. As to the second objection, the religious point would largely be met by the proposal set out above—that there should be a civil as well as a religious marriage, and only the former would be dissolved by the State. Still, there is no doubt whatever that under a system based on the matrimonial offence it would be a great injustice to force someone to be divorced who had not committed such an offence.
An alternative to the present system is suggested by Lord Walker, who thinks that `the doctrine of the matrimonial offence ought to be abandoned as the basis for divorce and replaced by a provision that marriage should be indissoluble unless having lived apart for not less than three years either party shows that the marriage has broken down.' Lord Walker defines a broken marriage 'as one when the facts and circum- stances affecting the lives of the parties adversely to one another are such as to make it improbable that an ordinary husband and wife would ever resume habitation.' The doctrine of the matrimonial offence would be retained only for the lesser remedies of judicial separation and restitution of conjugal rights. Lord Walker's proposal would on the whole make divorce harder to obtain. In particular it would do away with divorces founded upon an isolated act of adultery. The Arch- bishop of Canteibury has protested against this most obnoxious feature of the present system, and its abolition would be an unmitigated good. The proposal would also do away with a great deal of hypocrisy and dishonesty, and it would certainly ensure that marriages which exist only in law would be dis- solved. Since the doctrine of the matrimonial offence had been abolished, the only stigma against 'innocent' spouses would be that they had made an unsuccessful marriage, i.e., the stigma that is attached to them already. Whether or not a marriage had completely broken down would probably be decided administratively by welfare officers rather than judicially. But disputes over children and money matters would still he decided by the courts.
The doctrine of the break-down of marriage will need to be worked out in detail, but it would seem to afford a much more satisfactory basis for the law than the doctrine of the matri- monial offence. Meanwhile, we should be grateful to the Royal Commission for their many valuable recommendations— especially those concerned with marriage rather than divorce.
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