Page:EB1911 - Volume 08.djvu/357

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340
[ENGLAND
DIVORCE


antenuptial incontinence, even if accompanied with pregnancy, nor did it borrow from the civil law of Rome either lunacy or crime as grounds for divorce.

Much comment has been made on the different grounds on which divorce is allowed to a husband and to a wife,—it being necessary to prove infidelity in both cases, but a wife being compelled to show either an aggravation of that offence or an addition to it. Opinions probably will always differ whether the two sexes should be placed on an equality in this respect, abstract justice being invoked, and the idea of marriage as a mere contract pointing in one direction, and social considerations in the other. But the reason of the legislature for making the distinction is clear. It is that the wife is entitled to an absolute divorce only if her reconciliation with her husband is neither to be expected nor desired. This was no doubt the view taken by the House of Lords. In 1801 a Mrs Addison claimed an absolute divorce on the ground of her husband’s incest with her sister. The matter was long debated, but Lord Thurlow, who appeared in the House of Lords for the last time in order to support the bill, turned the scale by arguing that it was improper that the wife should under such circumstances return to her husband (see Campbell, Lives of the Chancellors, vii. 145). “Why do you,” he said, “grant to the husband a divorce for the adultery of the wife? Because he ought not to forgive her, and separation is inevitable. Where the wife cannot forgive, and separation is inevitable by reason of the crime of the husband, the wife is entitled to the like remedy.”

The act (sec. 32) provided, in case of dissolution, for maintenance of the wife by the husband on principles similar to those recognized by the ecclesiastical courts, and (sec. 45) for the settlement of the property of a guilty wife on her husband or children; but this enactment was imperfect, as provision was made only for a settlement and not for payment of an allowance, and none was made for altering settlements made in view or in consequence of a marriage. The act (sec. 35) provides also in all divorce proceedings, and also in those of nullity, for provision for the custody, maintenance and education of children by the court: provisions of great value, which were unfortunately for some time limited by an erroneous view of the court that the age of the children to which such provisions applied should be considered limited to sixteen. The act of 1857 also transferred to the new court the powers exercised by the common law courts in the action for criminal conversation. It was made obligatory to join an alleged adulterer in the suit, and damages (sec. 33) might be claimed against him, and he might be ordered to pay the cost of the proceedings (sec. 34), the extent depending upon the circumstances of each case.[1]

The act of 1857 in one respect went beyond a transfer of the powers exercised by the ecclesiastical courts or the legislature. It provided (sec. 21) that a wife deserted by her husband might apply to a magistrate in petty sessions and obtain an order which had the effect of protecting her earnings and property, and during the currency of such order of protection a wife was to be in the same position as if she had obtained an order for judicial separation. The effect of this section appears to have been small; but the Summary Jurisdiction (Married Women) Act 1895 has afforded a cheap and speedy remedy to all classes.

The framers of the act of 1857 were careful to avoid offending the scruples of clergymen who disapproved of the complete dissolution of marriage by a lay court. It was provided (secs. 57 and 58) that no clergyman should be compelled to solemnize the marriage of any person whose former marriage had been dissolved on the ground of his or her adultery, but should permit any other clergyman to solemnize the marriage in any church or chapel in which the parties were entitled to be married. It is to be feared that this concession, ample as it appears, has not allayed conscientious objections, which are perhaps from their nature insuperable. The act made no provision as to the name to be borne by a wife after a divorce; and this omission led to litigation in the case of a peer’s wife, in Cowley v. Cowley, in which Lady Cowley was allowed to retain her status.

Modifications of the Act of 1857.—Subsequent legislation has made good many of the defects of the act of 1857. In 1859 power was given to the court, after a decree of dissolution or of nullity of marriage, to inquire into the existence of ante- and post-nuptial settlements, and to make orders with respect to the property settled either for the benefit of children of the marriage or their parents; and a subsequent act (41 & 42 Vict. c. 19, s. 3) removed a doubt which was entertained whether these powers could be exercised if there were no children of the marriage. In 1860 a very important change was made, having for its object a practical mode of preventing divorces in cases of connivance and collusion or of misconduct of the petitioner. It was provided that a claim of dissolution (a provision afterwards extended to decrees of nullity) should in the first instance be a decree nisi, which should not be made absolute until the expiration of a period then fixed at not less than three, but by subsequent legislation enlarged to not less than six, months. During the interval which elapsed between the decree nisi and such decree being made absolute, power was given to any person to intervene in the suit and show cause why the decree should not be made absolute, by reason of the same having been obtained by collusion, or by reason of material facts not brought before the court; and it was also provided that, at any time before the decree was made absolute, the queen’s proctor, if led to suspect that the parties were acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case, might under the direction of the attorney-general intervene and allege such case of collusion. This enactment (extended in the year 1873 to suits for nullity) was ill drawn and unskilfully conceived. The power given to any person whomsoever to intervene is no doubt too wide, and practically has had little or no useful effect as employed by friends or enemies of parties to a suit. The limitation in terms of the express power of the queen’s proctor to intervene in cases of collusion was undoubtedly too narrow. But the queen’s proctor, or the official by whom that officer was afterwards represented, has in practice availed himself of the general authority given to any person to show cause why a decree nisi should not be made absolute, and has thus been enabled to render such important service to the administration of justice that it is difficult to imagine the due execution of the law of divorce by a court without such assistance. By the Matrimonial Causes Act 1866 power was given to the court to order an allowance to be paid by a guilty husband to a wife on a dissolution of marriage. This act also can hardly be considered to have been drawn with sufficient care, inasmuch as while it provides that if the husband’s means diminish, the allowance may be diminished or suspended, it makes no corresponding provision for increase of the allowance if the husband’s means increase; nor, apparently, does it permit of an allowance in addition to, but only in substitution for, a settlement. The act makes no provision for allowance to a guilty wife, and it certainly is a serious defect that the power to grant an allowance does not extend to cases of nullity. In 1868 an appeal to the House of Lords was given in cases of decree for dissolution or nullity of marriage.

The great changes effected by the Judicature Acts included the court for divorce and matrimonial causes. Under their operation a division of the high court of justice was constituted, under the designation of the probate division and admiralty division, to which was assigned that class of legal administration governed mainly by the principles and practice of the canon and civil law. The division consists of a president, and a justice of the high

  1. In Constantinidi v. Constantinidi and Lance (1903), in which both parties were guilty of misconduct, it was held by Sir Francis Jeune (Lord St Helier) that where a wife has by her misconduct broken up the home (the husband’s misconduct not having conduced to the wife’s adultery) the court would exercise its discretion in favour of the husband petitioner, and, further, the wife being a rich woman, it was justifiable to give her husband a portion of her income, in order to preserve to him the position he would have occupied as her husband, the broad principle being that a guilty respondent should not be allowed to profit by divorce. But further litigation concerning this case occurred as to the variation of the marriage settlements in favour of the husband, and the decision of the court of appeal in July 1905 considerably modified the decision of Sir Francis Jeune.—Ed. E. B.