The Case for Divorce Law Reform
BY LORD GORELL
THE 'case for reforming our present law of divorce can be stated very simply and with irresistible force : it is that no one, whatever their shades of opinion or religious belief, can be found anywhere who defends it. Those by who'll for whatsoever reason divorce is regarded not as a cure for a disease but as the disease itself do not wish our present law changed, for the sole reason that they are well aware that any change would inevitably be in • the direction of greater freedom, but that is not to say that they defend our present law. If they could, they would go back to the days preceding the Divorce Act of 1857, to the days, that is, when the absurd and unjust state of the law gave rise to the famous causticism of Mr. Justice Manic, when a man could get a divorce by Act of Parliament if he were rich enough and the poor were denied all release. That being impossible, since putting back the clock so definitely is never practicable in human and in Parliamentary affairs, the Roman Catholics oppose all change, preferring a law admittedly bad to one that in their view might be just but worse ; but neither they nor anyone else attempts the impossible task of defending the law under which our matrimonial disasters are governed today.
Twenty-seven years ago my father, the President of the Probate, Admiralty and Divorce Division of the High Court of Justice, speaking from the Bench with the full authority of his office, said of the law that it was his duty daily to administer : "That the present state of the English law of divorce and separation is not satis- factory cannot be doubted. The law is full of incon- sistencies, .anomalies, and inequalities amounting almost to absurdities ; and it does not produce desirable results in many important respects."
No severer condemnation could well be conceived—the words, carefully considered and deliberately uttered, aroused great public interest and led straight to the Royal Commission. That examined endless witnesses, sat for four years, produced two exhaustive Reports— and has been entirely disregarded. The law, now as. in 1906, is still " full of inconsistencies, anomalies, and inequalities amounting almost to absurdities "—the one change has been that under the Act sponsored by Major Entwistle a woman can now 'obtain her divorce for the same cause as a man—and that has been due to the changed status and power of women and to nothing else.
The state of the English law in this very important field of our life is not only a national disgrace but a . source of infinite harm. We speak jestingly at times of divorces in Reno—we should look to our own sty first : we examine the results of Prohibition in the United States and declare quite correctly that it has induced a lamentable disregard of law—we should be good judges of that,- with the cynical and *disgusting procedure of hoodwinking with which our divorce court is familiar. So far has this now gone that it has become almost an accepted thing that it is " gentlemanly " for the husband to comMit perjury in order that a divorce may be granted to his wife without any stigma being attached to either. Everyone knows perfectly well that a legal farce is being solemnly enaeted there have indeed been cases where - the "gentlemanly !' husband has been quite indignant at having it supposed. by his friends that he really com- mitted the adultery that he has just pretended to the Court was to be laid to his charge. Our scale of values is being corrupted by the existence of a law no one defends and no one respects. It is needless to do more than state that the reason why nothing is done to remedy the indefensible is the religious difficulty : since this cuts across all parties, no Government will deal with the open sore. But what is curious is that no Government from 1913 to today has had the courage to remedy even all that it could without bringing about its ears the clamour of religions. The Roman Catholics, basing themselves on St.. Mark and denying all divorce, would resist all change—that may, of course, be taken for granted ; but, as I have urged repeatedly, in Parliament and in the Press, there is a great deal of reform that for twenty years has cried out to be undertaken with a vast amount of general agree- ment. It cannot be said too often .that, whereas it is normally represented that the majority of the Royal Commissioners, led by my father, were in 'radical dis- agreement with the minority, led by the present Arch- bishop of Canterbury, in actual fact there was complete unanimity amongst the whole of the Commissioners-- except on one point only. It is true that this was the vital point of the causes for which divorce should be 'granted, but that does not alter the general agreement is to the removal of all the other inconsistencies, 'anomalies and absurdities. There will never be agreement as to the causes : there was as to all the rest—and yet nothing, nothing gets done, because of the religious fight over the causes; St. -Matthew ranged against St. Mark and all the tomes of inquiry on the true text and meaning.
At present, to give a concrete example, if a man marries and deserts his wife and disappears and is lost to his wife's ken, she may after seven years of enforced widowhood obtain a declaration of his presumed death and may legally marry again ; but, if her first husband returns, her second marriage is null and void and her children by it are illegitimate. Over and over again it happens that the first husband only returns because he has learnt that his wife has come in for money or is prospering : he has wrecked her life once, he ruins it again. Every one of the Royal Commissioners agreed that was a scandal and that the second marriage should be allowed to stand. Yet nothing is done. And that is only one example of many which could—and should— be remedied by general consent, whatever was the issue of the battle of the causes.
As to that, I have never yet heard any religious leader answer my father's investigation of the principles upon which divorce legislation should proceed in the course of which . he examined judicially the whole religious attitudes and the foundations on which they rest. Nor have I heard an English ecclesiastic show a Scot why Scotland should be deemed irreligious for its view of divorce. Nor have I ever heard anyone explain why on every other subject Christ's words should be taken as laying down general principles, but on this of divorce as enacting precise legislation. Every condition of human life and activity has undergone niodification and change ; but, say those who oppose all reform, the law of divorce was alone .laid down for ever and ever, amen. It is illogical, it is contrary to all sense and to every other aspect of human and religious life. From every possible angle the present English law of diyoree..calls out for reform, and calls in vain,. Because it is con- temptible and indefensible it is perpetually disregarded : it is lowering not only our standard of married life, but the standards generally of the morals of the country-- and yet it is the moralists who wreck every hope of its amendment.
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