Chapter XXIII: Appendix: A

DIVORCE

The following extracts from the evidence of Earl Russell and from the evidence of Mr. Atherley-Jones, K.C., before the Divorce Commission (December 19th, 1910), are not without some interest. They were discovered in _The Times_ report by accident, after the present author’s chapter on divorce had been written.

“Lord Russell, who was the first witness, said he had been interested
in the question of divorce since 1890. He had studied the history of
the question, the earlier part of which was naturally ecclesiastical;
but as Parliament, in his opinion, was not concerned in legislation
with ecclesiastical views he did not propose to go into them. In
his view the State had no more right to dictate to him or his
fellow-citizens what should be the nature of contracts of marriage
from an ecclesiastical point of view than it had to deal with the
education of his children, with the exercise of the franchise, or
with other matters from an ecclesiastical point of view.

“The existing law suffered from three great defects:--

“(1) The premium placed upon adultery and the advantages given to
those who are willing to commit it: (2) the practical denial of
divorce to the poor; and (3) the provision of an illusory remedy in
many cases of matrimonial hardship, such remedy itself being directly
provocative of further adultery. In the case of the poor, the
petitioner might be in law fully entitled to his remedy, but unless
he could find a sum varying from £30 to £70 he must go without. This
sum to be spent in one lump was probably out of reach of four-fifths
of the husbands and nine-tenths of the wives of the country. The
proceeding _in formâ papueris_ did not adequately meet the case. To
his mind the obvious remedy was to give jurisdiction to the County
Courts, manned by able Judges who habitually tried cases infinitely
more difficult than those of divorce. In the vast majority of cases
the evidence would be in the locality of the County Court, thus
reducing the expense of witnesses. He supposed there should be some
limit of income--say £500 a year--and he thought it would be fair to
prohibit a petitioner in the County Court from seeking damages.

“The remedy of judicial separation had been extended and kept alive
to satisfy the feeling that something ought to be done to protect the
feelings of husbands and wives while not offending the ecclesiastical
conscience. To his mind, JUDICIAL SEPARATION WAS A WICKED PROVISION
OF THE LAW, WITH A VERY HIGH PROBABILITY OF ADULTERY BY THE SEPARATED
PARTIES.

“The vexed question of divorce appeared to have slumbered for about
50 years. In May, 1902, he introduced a Bill in the House of Lords to
increase the causes for divorce, to assimilate the practice of the
Divorce Court to some extent to that of other divisions of the High
Court, TO RELIEVE POOR PEOPLE BY ENABLING THEM TO BRING THEIR SUITS
IN THE COUNTY COURT, and TO PROVIDE FOR LEGITIMATION BY SUBSEQUENT
MARRIAGE and for marriage with the deceased wife’s sister, afterwards
dealt with in a separate Bill.

“_The Chairman._--Would you recapitulate the grounds which you then
proposed?

“The witness said the grounds, in addition to adultery, were:--That
since the marriage the other party to the marriage has been guilty of
cruelty to the petitioner; that the other party to the marriage is
undergoing penal servitude for a term of not less than three years;
that the other party to the marriage has during the year preceding
the presentation of the petition been found or certified to be of
unsound mind under the Lunacy Act, 1890; that during the three
years preceding the presentation of the petition the parties to the
marriage have lived apart, and that throughout that period either of
the parties did not intend to resume cohabitation; that during the
year preceding the presentation of the petition the parties to the
marriage have lived apart, and that the other party concurs in the
petition.

“He introduced three other Bills on a smaller scale providing for
divorce in the case of desertion in 1903, 1905, and 1906. The first
and second were unanimously rejected; three voted for the third; the
Government whips told against the fourth, and it therefore received
no support.

“There was much to object to in the procedure of the Divorce Court.
He had heard no particular reason why pleadings in the Divorce Court
should be sworn to, but if it was agreed that people were thereby
debarred from launching baseless charges there was something to be
said for it. It ought not to be necessary to swear a jury where the
damages were agreed. The practice by which a wife could accuse a
woman of adultery and the Court could find her guilty without the
woman having notice of the proceedings or an opportunity of being
heard was indefensible. He thought only the decrees of the Court
with the names of the parties should be published. The suggestion
that publicity was a deterrent was open to a good deal of doubt. It
was a great hardship for a man or woman that all the details of an
unsuccessful charge of adultery should be published. Even though
acquitted, the damage done was irremediable. There was a growing
tendency on the part of certain newspapers to treat the Divorce Court
as the fountain head of sensational news.

“In considering legislation he refused to have regard to the
religious views of particular sects. He admitted marriage to be a
contract which affected not only the two parties to it, but the
community, and he considered that the community was bound to have
regard to the moral tendency of the marriage and divorce law and to
the interests of the children. Such expressions as ‘the sanctity
of marriage’ and “the sanctity of the home,” often used in this
connection, he regarded as having no particular meaning in the case
of adulterous homes or establishments where husband and wife had
long been separated. He suggested, therefore, that the test which
should be applied was whether any of the attributes of marriage
were still in existence between husband and wife. Where the spouses
had been separated for a term of years; where children had already
made their home with one or the other; and where no element of the
marriage tie remained except some financial relations and the legal
bond, he suggested that the law should step in, and, recognizing
the existing state of things, should sever the legal bond and
leave the parties free to create new homes. Since the decision of
“Jackson _v._ Jackson” the wife might leave her husband at the church
door, and unless one or other of the parties took advantage of the
privileges which the law reserved for adulterers, they would both
remain compulsory celibates for the rest of their lives. He still
thought the ideal state of the law would be that set out in the Bill
he presented to the House of Lords in 1902. English legislation,
however, always proceeded by piecemeal tentative advances, and
probably, therefore, the simplest form of legislation would involve
four advances:--(_a_) Equality of the sexes; (_b_) insanity a ground
of separation; (_c_) all judicial separation to be capable of being
turned into divorce _a vinculo_ on the motion of either party at the
expiration of two years; and (_d_) County Court jurisdiction.

“_Judge Tindal Atkinson._--Would you give no damages against the
co-respondent?

“_The Witness._--I think it rather a barbarous custom.

“Then you leave the co-respondent without punishment?--I do not think
you leave him without punishment. He has social exposure. I think it
is more desirable to give no damages than to suggest that a man can
get another’s wife by paying for her.

“In reply to Mr. Burt, the witness said he did not think the Assize
Courts a good alternative to the County Courts.”

EVIDENCE OF MR. ATHERLEY-JONES.

Mr. Atherley-Jones, K.C., M.P., said he prepared a Bill some years ago dealing with divorce. He came to the conclusion that subject to limitations the conditions which now enabled a person to obtain judicial separation should thenceforward be able to obtain divorce _a vinculo_. His view was that jurisdiction over certain areas might be conferred upon Judges selected from the County Courts.