Divorce English style
THE LAW
R. A. CLINE
The embarrassing frequency with which divorce court judges in quite recent years have continued to quote Lord Penzance's dictum (1867) that marriage is 'the voluntary union for life of one man and one woman, to the ex- clusion of all others,' and the unhappy tributes they have continued to pay to what they de- scribed as 'the sanctity' of marriage—not least by refusing decrees in long and bitterly con- tested cases, leaving the parties irretrievably wedded to each other—have been vivid re- minders of the need for revising the forms, at any rate, of divorce law in the direction of contemporary reality.
The Church of England, in its 1966 report Putting Asunder by a group appointed by the Archbishop of Canterbury, was in the van in proposing to abolish the doctrine of the matri- monial offence altogether, and substitute that of breakdown of the marriage. It wanted to see every divorce action converted into an inquest on the actual condition of each marriage brought to the attention of the courts; and it went so far as to deplore the present 'tendency . . . to draw too sharp a line be- tween contested and uncontested suits.' It em- phatically refused to accept either breakdown merely as an addition to the existing grounds based on matrimonial offences, or divorce by consent, although the latter has, of course, existed in practice for years and years.
The Law Commission was reluctantly obliged to shoot down these proposals in flames, as being totally unworkable. Neverthe- less, as both bodies recognised, the present law has grave defects, being both unfair and inept,
and principles widely regarded as hypocriti- cal. It is therefore desirable to bring the principles more into accord with justice, and the practice with convenience. At present, it works, more or less, but it is not just; under the group's proposals, it would be just, more or less, but it would not work. In a sturdy attempt to get the best of both worlds the com- mission and the church thereupon got together and eventually produced a document, of con- siderable interest to the student of British doublethink, designed to paper over the gulf between them by the simple expedient of pre- serving both divorce by consent (after two years' separation) and the present matrimonial offences, but calling them all 'matrimonial situations' from which breakdown is to be `inferred.' It will be seen,' proclaims this docu- ment, triumphantly but falsely, 'that the pro- posals fully maintain the principle . . . that breakdown should replace matrimonial offence and become the sole and comprehensive ground of divorce.: The first legitimate fruit of the union be- tween the two bodies is the new Divorce Reform Bill, presented for its first reading on 29 November by Mr (William) Wilson, MP, who in a recent article candidly referred to 'the proposed provision . . . for divorce by consent after two years' separation'; so much for the Archbishop of Canterbury and the -objections of his group. The continued, though as it were subterranean, existence of the prin- ciple of the matrimonial offence is likewise
assured by the fact that (assuming that the Bill does, as promised, embody the intentions of the agreed document) it is only a respondent's conduct which, if found intoler- able, will give ground for a divorce without consent before five years are up; whereas if the idea of guilt or innocence were really out, and the only basis were really breakdown, it would not matter whose conduct caused it.
The Law Commission had indeed previously regarded 'breakdown without inquest' as only practicable, as the sole ground for divorce, if the period of separation were very short (six months was suggested), since otherwise 'inno- cent parties who can now obtain a divorce with reasonable dispatch on the ground of out- rageous conduct by the other spouse would have to wait [say] two years in all cases.' They had not then realised the feasibility of retain- ing the effect of offences by labelling them situations—relevant only when brought about by the respondent. Presumably it is considered that public opinion will not stand for, say, a determinedly adulterous partner who has thereby caused a complete breakdown of the marriage, obtaining a divorce on that ground —even when breakdown is the sole ground of divorce under the new dispensation—at least not for five years.
The object, in fact, is achieved, though the hypocrisy remains. Nothing much is changed except the form. Indeed, in spite of trumpet- ings about liberalisation, with one important exception the effects of the Bill are likely to be small: that is, the already tiny proportion of defended cases (7 per cent) will virtually disappear, and divorce by consent will con- tinue as before, except that those whose con- sciences would have been troubled by the manu- facture of a matrimonial offence will be relieved of it if they are prepared to wait for two years; if there is no consent a petitioner will still be able to obtain a divorce by proving a situation which under the present law amounts to a matrimonial offence by the respondent; in such a case—or where there is consent—one can hardly envisage a court deciding that the marriage has not broken down.
. The only real change—and it is a substantial one—is that after five years' separation any- body, 'guilty' or otherwise, will be able to secure a divorce against the will of an 'inno- cent' partner. The main justification averred for this is the number of stable, illicit unions in need of regularisation by marriage, so legitimating the children. Whether this is sufficient for such a far-reaching change of principle will presumably be, the main matter of debate. There are no statistics showing the proportion of such unions resulting from the refusal of a former spouse to petition; nor for that matter can there be statistics showing the number of marriages saved, or retrieved, by such refusals. The problem of the children would more logically be dealt with by a wider reform of the law relating to illegitimacy. Logic has, however, always been a coy per- former on the English legal stage.
Previous page
