DIVORCE LAW REFORM. D IVORCE is a subject which one feels
inclined to approach on one's knees. There is no more grave or delicate problem in the whole range of sccial theory and practice. The welfare, the security, and the future of the nation all depend upon a stable family life, and this stability, for good or ill, must be enormously affected by the Marriage Laws. Cicero was perfectly right when he said that monogamy was the very seed-plot of the State. The recent debates in the House of Lords, at the end of which Lord Buckmaster's Matrimonial Causes Bill was given a second reading by a substantial majority, have brought the problem to a new stage, and it is the duty of every good citizen to face the facts and make up his mind about them.
We find our own point of view substantially expressed by Lord Coleridge, who said in the House of Lords on Thursday week that, although he had approached his work in the Divorce Court with the settled conviction that the restrictions on divorce should not be relaxed, he was not ashamed to confess that sad experience had changed his opinion. He was perplexed, distressed, and %yen appalled at the amount of unhappiness with which he was confronted. He then went on to point out the degrading farces which were played out under the present conditions. One kind of farce is only too familiar t o us all. The wife in order to get a divorce must prove cruelty as well as adultery against her husband. It is easy for well-to-do people who can afford the legal processes, and who are prepared to tell falsehoods, to satisfy those stipulations of the law. The husband— we are considering only one of the possible variations of a particular practice—consents to put himself in a position in which adultery will be assumed to have taken place. The question of cruelty remains to be disposed of. Persistent desertion technically counts as cruelty ; therefore the wife writes a loving letter to her husband, imploring him to return to her. He writes a letter in answer, civil but firm, refusing to return. The careful literary critic could often swear from the internal evidence of the letters that they had been written by the same hand ; but the Divorce Court cannot concern itself with niceties of this kind. The wife thereupon applies to the Court for a restitution of conjugal rights. The Judge orders • the husband to return within fourteen days. If the husband did return the wife would be horrified, and the whole plot would break down. But this sort of grim practical joke is never played. Technically, cruelty in addition to adultery is held to be proved, and the divorce is granted, the result having been procured by carefully concerted plans between the two parties. If all this is scandalous, it is not so scandalous as the fact that when divorce is properly and rightfully procurable well-to-do people can secure it, but—partly because the Divorce Court is centralized in London—it is utterly beyond the resources of poor people. One has heard of instances of a man or a woman saving up hard-won, wages for many years in order to be able to pay for freedom from a union which meant unbearable ill-usage and misery.
Such are some well-known features of existing conditions. Lori Buckmaster has aimed at redressing wrongs by bodily incorporating in his Bill the recommendations of the Majority Report of the Royal Commission on Divorce which was appointed in 1909. The late Lord Gorell, who had more experience of matrimonial causes than any other man, was Chairman of that Commission and signed the Majority Report. It recommended that relief should be given for the following breaches of the marriage relationship : adultery ; desertion for three years ; cruelty ; incurable insanity after five years' confinement ; habitual drunkenness found to be incurable after three years ; and imprisonment for life after a commuted death- sentence. The signatories of the Majority Report took a deeply earnest view of their responsibilities ; no one can doubt that who has read the Blue Books. They were thoroughly alive to all the objections which can be urged to an alteration of the Marriage Laws. We cannot do better than describe the spirit in which they wrote their Report by quoting Lord Gorell's own words :— "When one realizes what human nature is, of what horrible conduct human beings are capable under the influence of lust. anger, greed, and drink . . . and the frightful sufferings they can inflict on each other and upon children, and when. Christians have in mind the intense pity and superhuman sympathy with which Christ regarded the suffering, the poor, the needy, and His tender regard for little children, it seems impossible to credit that in teaching the doctrine of faithfulness in marriage, He was condemning those who suffer from the breach of it to life-long misery and moral deterioration if not ruin, when their ideal is shattered by conduct He condemned, or by super- vening circumstances which render life intolerable."
Those who opposed Lord Buck-master's Bill in the House of Lords were quite ready to accept the recommend- ations of the Minority Report of the Royal Commission, which proposed that there should be cheaper divorce, so that the poor could get relief as easily as the rich ; equality of sex, so that the wife could divorce her husband for simple adultery, just as a husband can now divorce his wife for simple adultery ; and increased grounds of nullity. The Minority Report is common ground which hardly anybody disputes.
As so much was said in the debate about the Christian basis of our existing Marriage Laws, it is desirable that we should say something on that subject. The Roman Catholic view that marriage is an indissoluble bond leads to perfect logic and simplicity in dealing with the problem, at all events in theory, though it has not always been so in practice. But the point of view of the Church of England is based upon the fact that Christ did, according to St. Matthew, admit an exception to the theory of inlis- solubility. The question therefore arises whether, since exception is admitted and absoluteness is not asserted, it is possible or desirable, or even in accordance with the Christian spirit, to read Christ's precepts as literal prohi- bitions rather than as the presentation of a spiritual ideal. It is obvious that Christ's so-called literal precepts of prohibitions are not generally incorporated in our law. For example, Christ said that a man who was smitten on one cheek should turn the other cheek to the aggressor. Our law does not lay that down as an operative principle, otherwise we should not have any civil suits in our Law Courts ; and what we have agreed to call " justice " as between two parties could not be obtained. On this subject we will quote again from evidence given before the Royal Commission. Dr. Denney, the well-known Scots theo- logian, said :- "it is a mistake to look for anything statutory in the words of Jesus. He never speaks of any law except the law of God, and if you say that by the law of Christ marriage is indissoluble, the only thing we can have in mind is this: the law of God is a moral law, and it can only be stated as a requirement that cannot be stated as a datum. What Cod requires of all married people is that they should live in the marriage relationship purely and permanently. The divine requirement is a require. ment of indissolubleness. But just because it is a moral require. ment it may not be fulfilled."
Again, the following exchange of question and answer took place between the Archbishop of York, who was a member of the Commission, and Dr. Sanday :— " The Archbishop : 'May I take it that you think that even
to Christians our Lord is only expressing a general idea, as He
does. when Ho speaks of turning the right cheek, and so forth ' Dr. Sanday : I think the two cases are parallel.' The Archbishop: 'You do or do not think 1' Dr. Sanday : I think they arc parallel.'" Finally, the following question and answer were exchanged between the late Lord Gorell and Dean Inge :— "'Do you find from your exhaustive studies of Scripture that the State might act on Christian principles, and yet pormi( divorce being granted on the serious grounds you have mentioned (brutal cruelty, habitual drunkenness conviction for felony, venereal disease) ? '—` Yes, the State 1:as a right to do that.'— 'And still be acting in accordance with Christian principle ? '
Yes, I do think so.' " To go outside the proceedings of the Royal Commission, we should like to quote the following passage from The Mind and Work of Bishop King, an appreciation of the former Bishop of Lincoln, who was admitted by all to be one of the saintliest characters of the modern Church :— "For example, there was one subject upon which he felt compelled to take an independent line, although it gave much pain and sorrow to some of his best friends—the question which arose as to the absolute indissolubility of marriage. He had no uncertainty as to what is God's original antecedent will with regard to marriage ; of that there can be no doubt.' But he urged that 'the point of view from which we should consider this Question is not ideal, but practical, ethical, remedial . . .
to see what may be done under the head of equity and mercy.' Be dealt fully with the question in his charge in 1895; and he arrived at the conclusion that the general principle laid down In St. Mark and St. Luke should be regarded as limited by the one exception specified in St. Matthew ; and hs was convinced, 'in looking back over the chief sources of evidence, over councils, penitential books, the early fathers, the later story of the Church,' that statements and hesitations were found which would not have been possible if the absolute indissolubility of marriage under all circumstances had been the accepted traditionary teaching of the Clitirch.' Be therefore- accepted the statement of the Lambeth Conference of 1888: 'The Conference recommends that the Clergy should not be instructed to refuse the Sacraments or other privileges of the Church to those who under civil sanction are thus married ' ; i.e., in the case of the innocent party having contracted another union."
Bishop King probably did not go so far as Lord Buckmaster would like, but honesty compelled him to make admissions which were denied, and indeed resented, by those who otherwise belonged to his school of theological thought.
We have said enough on the Christian side of the question to show that there is good warrant and sanction for such relax ations of the Marriage Laws as would work in the direction of mercy, greater domestic happiness, and of course a sounder morality. The last phrase will no doubt seem inappropriate to those who would regard any relax- ation whatsoever as an immorality. But look at what is happening now. Judicial separations—which, by the way, are in themselves a violation of the marriage contract— have long since been granted by the English law, and they are greatly on the increase. Most judicial separations are granted, not without due cause and careful inquiry, to people who are still comparatively young. The result is that a man or woman judicially separated is condemned to an isolation which is co-extensive with the life of the other party. He or she lives in a hotbed of suspicion. Every act which could be interpreted as superficially disregardful of a union which still nominally exists is regarded as an impropriety ea long as the man or woman tries to live on the plane of respectability. It is a lament- able but not a surprising fact that a great proportion of those who are judicially separated throw respectability to the winds and contract illicit unions. Much the same thing is true of either the husband or the wife who is separated, not judicially, but by reason of deliberate desertion, or insanity, or cruelty, of habitual drunkenness, or long imprisonment. What strikes us in the arguments of those who would insist on the literal Christian prohibition of any divorce save in the one exception of adultery is that the children are insufficiently considered. This seems to us to be a matter of paramount national importance. As the late Lord Gorell said, " States have always considered that marriage could not be treated as an ordinary simple contract in which no one is concerned except the parties." For that reason responsible States have refused to put an end to marriage at the simple will of the parties; but for the very same reason the relation of two persons who have entered into marriage must be considered in the interest not only of the children but of the whole community. It is not, in our opinion, right or desirable that the children should be brought up in the atmosphere of an illicit union when it can be proved that the man and the woman (not having forfeited their right to relief) desire nothing better than to faithfully together if the law allowed them to do so.
In his interesting speech in the House of Lords Lord Gorell hinted that if his father had been alive he might have changed his views as to what was desirable or not desirable to put into a Bill for the reform of the Marriage Laws. There is much in that hint. The truth is that the work of the Royal CommissiononDivorce was experimental. The Commission explored a field that had never been- properly explored before, and since their work was finished nine years have passed which have made a great mass of new data available. This is emphatically true, because never has there been such pressure on the Divorce Courts as there has been within the past few years owing to the abnormal conditions of the war. We submit, therefore, that though we should not shrink from accepting Lord Buckmaster's Bill if it could be proved desirable in the interests of the State, in the interests of morality, and above all in the interests of the unhappy children who are too seldom mentioned, more discussion is necessary before we eemniit ourselves to a step which could not be retraced. In this supremely difficult matter "Go slow" is bound to be a safe motto. In any case the equality between the sexes and the increased grounds of nullity should, be granted without delay. Divorce should also be made cheaper. We ought to be extremely careful, however, to insist on the fact that cheap divorce must never mean easy divorce. Though we would lessen the expense, we would make the legal way towards divorce—the- quality of the evidence required and so forth—so arduous that the determination necessary to get a divorce would be in itself a test of good faith. We must never have anything approximating to divorce for "incompatibility of tempera- ment "—never anything like that state of affairs, described by Mark Twain, in which a man could divorce his wife because both of them wanted to use the doormat at the same moment. Let hardship be really proved to be hardship before an application for divorce can have even a chance of success. Every attempt at reform that encouraged people to think more lightly of the sanctity and, in all ordinary circumstances, of the permanence of the marriage state would be worse than a blunder—it would be a crime. It is upon that normal permanence that we must always hope to build good citizenship, for we can build it on nothing else. We hope that Lord Buckmaster's Bill, or another, will be proceeded with, and that there will be a searching re-examination of the facts before a Committee of both Houses. The vast legal knowledge of the House of Lords would be invaluable. We are bound to say that if new objections were not discovered in the experience of the past nine years we, for our part, should be ready to accept a modification of the present law.