THE ROYAL COMMISSION ON DIVORCE. T HE Report of the Divorce
Commission, which was issued on Monday, is a document of superlative importance, affecting questions which strike into the foundations of our whole social, and ultimately of our national, life. There is not a family in the land which would not feel by practical experience, whether directly or indirectly, whether for good or ill, the consequences of a change in the established law as to divorce. No one will doubt the sincerity and high-minded intentions of those who recommend in the Report a considerable alteration of the law. They are conscious, just as we are ourselves conscious, of the hardship and misery suffered by some persons under their present inability to dissolve disastrous unions. They want to relieve those persons of their misery. In these circum- stances we have no thought of suspecting or criticising the motives of those who have drawn up the Majority Report. We are certain that they are admirable. The only question for us is whether the considerable changes which are recom- mended by the majority would not in the long run do more harm than good. We cannot help feeling that this would be the result. We state our opinion with great reluctance, for we should like to be able to accept the Majority Report. We admit and deplore the existence of hard cases—some of them terribly bard ; but the old principle remains true in an imperfect world that hard cases make bad law. The point of first importance for the nation is to preserve the basis of the family, which is a monogamous union dissoluble only by death or by an essential breach of the marriage contract by sexual unfaithfulness. (We leave out of account for the moment marriages which may be quite properly considered null and void for certain reasons not disclosed at the time of marriage, and for refusal to perform the duties of marriage.) If once grounds of divorce other than an essential breach of the contract are acknowledged there will be no rational halting-place till the terribly logical conclusion is reached that a man and woman can dissolve their union simply because they find
themselves unhappy while living together. Collusion would become the familiar practice of those who had a temporary distaste for each other's society. A state of mind would be created which would render divorce easy and without discredit, and the inevitable result would be the undermining of family life, by the maintenance of which the nation stands or falls.
For convenience we will here roughly summarize the Majority and Minority Reports. The Majority recommend that the two sexes should be on an equal footing as regards divorce. That divorce should be obtainable on the following grounds : (1) Adultery ; (2) desertion for three years and upwards ; (3) cruelty ; (4) incurable insanity, after five years' confinement ; (5) habitual drunkenness, found in- curable after three years from a first order of separation ; (6) imprisonment under a commuted death sentence. That facilities should be given for hearing divorce cases in courts throughout the country in cases where the joint income of man and wife does not exceed X300 and their property does not exceed .2250. That power should be given to declare marriages null in cases (a) of unsound mind ; (b) of epilepsy and recurrent insanity ; (c) of specific disease ; (d) when a woman is in a condition which renders marriage a fraud upon the husband ; (e) of wilful refusal to perform the duties of marriage. That restrictions should be placed on the publication of divorce reports ; and that judges should hear divorce cases without a jury.
The Minority agree that there should be equality of the sexes. They recommend emphatically that the grounds of divorce should not be extended. They agree that there should be local divorce courts with facilities to the poor, but not on a scale so extensive as the majority recommend. They agree that marriages should be rendered null on the grounds (a) to (e) recommended by the Majority. They agree in limiting the publication of reports. They agree that a man should be presumed dead after a continual absence without communication for seven years.
It will be seen that there is an important area of common ground. We are delighted to know that both sides agree that the law should put the two sexes on an equal footing in respect of divorce. We have long advo- cated this change. We do not thereby admit that the offence of the man in unfaithfulness is equal in degree to the offence of the woman. We hold that in the case of the woman the offence is more culpable. At the same time it is not desirable that an apparent injustice should continue. Women, we may be sure, recognizing how vastly important the maintenance of the family is, will be less ready than men to claim a dissolution of marriage on a single act of misconduct. For economic reasons, moreover, it will generally be a terribly grave step for a woman to break up her home. Yet we hold that she should in all cases have the absolute right of decision. She will not exercise that right unless her need is very pressing. The present state of the law does to some extent operate -viciously in the sense of making men feel that their marriage vows are not a matter of the greatest moment. A man guilty of misconduct ought not to be able to say that he owes his immunity, not to the forgiveness of his wife, but to his privileged position under the law. We are extremely glad, again, to read the common recom- mendations as to reasonable facilities for the poor seeking divorce, as to the reporting of divorce cases, and as to the presumption of death after seven years. While we do not desire that the grounds of divorce should be materially widened we do contend that in cases where divorce is legitimately sought it ought to be perfectly accessible to poor people. It is a discredit to a democratic country that relief from an intolerable situation should in practice be a luxury purchasable only by those who can afford to take their case into the present court. As regards the reporting of divorce cases, we are entirely in favour of publicity so far as it acts as a deterrent by bringing the principals in a sordid case into general disrepute. But this purpose can be quite adequately accomplished without offensively exploiting the details. The reporting of divorce cases day by day in which public interest is titillated as though in the unfolding of a serial story is probably the chief evil. If reports are not published till a case is finished, as the Commissioners recommend, the unwhole- some excitement of suspense will be killed. Moreover, there is the excellent recommendation, which we greatly hope will very soon be acted on, that a judge should have
the power to prohibit the publication of any passages indicated by him, and that violation of the rule should be treated as contempt of court.
We wish that we bad space to do justice to the fine historical sense and the high-minded sustained argument of the Minority Report. We agree that the new grounds for divorce which are recommended by the majority are so diffi- cult of definition that the gates of collusion would be opened wide. How can we define habitual drunkenness, cruelty, desertion, or incurable insanity with any hope of accuracy ? The admission of "desertion" for three years as a ground of divorce, for example, means that a husband and wife who really want to be divorced for no better reason than "incompatibility of temperament" have only got to agree to have no communication with each other for three years. Nothing can then stand in the way of " desertion " being proved. There is no logical point in that journey where one would be able to check the tendency to make marriages dissoluble at the mere will of captious or unscrupulous people. The finest words in the Church of England marriage service, "for better, for worse," would lose their significance. The sufferers would be the children, and through the children the generations of our land that have yet to come.
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