The Rights of Women and the Sexual Relations/Part 1/11. Divorce
DIVORCE.
The Jaws of a people on divorce are a sure measure of the reasonableness and humanity of its conceptions of marriage.
No nation known to me has reasonable divorce laws. Through the French revolution reason prevailed on this point for a time, in that it made divorce depend on the will of the married couple; but it soon again succumbed to the old prejudices and narrow-mindedness.
The free, common-sense conception of marriage, and with it also of divorce, is everywhere still suppressed by the theological conception of the relationship between man and woman. So-called religion and the ghostly "God" are the first enemies of marital happiness. According to the theological conception, taking its departure from superhuman consecration and superhuman will, marriage is in itself a hallowed relationship, and this abstract relation in itself, not the real happiness and interest of those who constitute it, is the chief object. Marriage, the formal relationship with the "divine" stamp, is to be upheld even if the married persons perish in it; marriage is to continue for life, even after all the requirements which constitute its essence have long ago disappeared. Marriage is to make the married persons, not the married persons marriage. Married people exist for the sake of marriage, not marriage for the sake of married people. Though, after becoming acquainted and familiar with each other to a degree not permissible or possible before marriage, they should tire of each other; though they should hate and loathe each other; though they should become as disgusting to each other as horrible pictures — they have once been married, they are called husband and wife, they have become a common social firm, they have a "claim" upon each other, they have once for all become I and you, and must never again become I and I. To be sure, nobody, not even the most bigoted theologian, says that marriage is destined to be an institution of unhappiness, and the marital chamber a chamber of torture; but if it has come to be so, it must remain so, because otherwise — marriage might become what it ought to be, namely, a relationship based on spontaneous affection, which is formed without help, and, even without force, is not dissolved, just because it finds in this affection, in the satisfaction of the mutual heart interests, the only true, the only legitimate, and the only lasting bond of union.
It is due to the theological, inhuman, misanthropical; barbaric conception of marriage that the laws inflict punishment upon those married persons who no longer respect a relationship that has become impossible. The "punishment" visited upon the married couple in their inability to longer love each other is not sufficient; for this very punishment they must be punished. They have entered into a relationship "for life," it is said. They may have done so, but they did it only in the belief that they would be happy with each other as long as possible, perhaps until death; but after they have come to recognize that they were mistaken; when, under circumstances which could not have been estimated or controlled before, they have come to know each other from a new point of view, which excludes all happiness and, therefore, the entire object of marriage, they must, even when they separate peacefully and with mutual understanding in order to seek for happiness elsewhere, be seized by a theological marriage-police and be chastised for sinning against the holy marriage relation. This is the logic of the theological conception.
The duration "for life" is the consequence of a real marriage, a happy choice; but to make it into an obligatory requirement even for an unfortunate choice is to condemn two people to lifelong misery fora momentary weakness, or an innocent chance, or a one-sided guilt, by means of the most senseless tyranny, simply in order to have them retain the name of a married couple. Sexual contact or a priestly "blessing" is to deprive two people completely of their liberty, is to make of them a mutual galley to which the one has chained the other as his slave, is to be considered as an act which can never be corrected. This is certainly logical; for the infallible stupidity of theology surely cannot be corrected.
Just as it is a truth which must never be lost sight of that progress of society in one direction can never be thought of by itself alone, so it is also impossible to bring about a true married and family life without a general revolution of social ideas and conditions. This does not, however, preclude those, who can in themselves make up for or do without this general revolution from demanding freedom from legal bonds, or from anticipating it; nor does it preclude the law from even now being shaped with a view to the anticipated conditions of the future. I believe that even on the basis of our present conditions no danger would accrue to society if the law should decree the following:
1) A marriage shall be dissolved when both parties demand a dissolution, and
a) declare that their economical relations are completely settled, which declaration shall absolve them from all future obligations;
b) documentarily testify that they have agreed about the support and education of their children, which agreement shall be mutually maintained with legal assistance. Legal assistance shall be rendered gratis.
2) A marriage shall be dissolved when one party against the will of the other, has three times, at intervals of one month, demanded a dissolution. In such cases the economical affairs shall be settled legally, if it cannot be done by voluntary agreement. The children shall be awarded to the parents according to their sex, if not otherwise voluntarily agreed. The obligation for the support of the children shall, as a general thing, be placed upon both parties in proportion to the property, if the matter cannot be settled by a free understanding.
By such regulations the character of a compulsory institution might be taken from marriage, and yet every consideration which would have to be taken of present social conditions be allowed for. And the levity which would be inclined to make of marriage a relation of unscrupulous frivolity would be met more effectively by the prospect of the obligations agreed upon than by present laws.
More senseless divorce laws than those of North America cannot easily be found, — doubly senseless for the reason that the forming of marriage is made so easy as to depend on a mere word. A mere promise of marriage, given perhaps in a moment of rashness, of intoxication, etc., can compel marriage; but the dissolution of the marriage is generally possible only when, after long, expensive, and scandalous lawsuits, the one party has succeeded in proving against the other the charge of — adultery. The hope for divorce, therefore, depends solely on scandal.
A New York court, in a suit of this kind, has just given a decision by which a marriage was dissolved on account of the proven adultery of the (seventeen-year-old) wife. The husband was left free to marry again, "just as if the divorced wife were dead;" but the wife was debarred from a new marriage "until the divorced man had really died."
A more senseless, more immoral, more unnatural,and more unjust decision I have never heard of; but it is only an application of existing laws.
I will not stop to speak of the indirect inducement that such a decision could become to the condemned party to remove the arbitrary hindrance to marriage by criminal means.
Neither will I dwell on the fact that the divorced woman has been condemned by the court either to an unnatural and not-to-be-expected renunciation, or to permanent prostitution and shame.
Nor will I discuss the question whether a court can deny one who has not been found guilty of a criminal offence his or her natural or civil rights.
I will not even stop to consider the logic which by the divorce destroys every bond, every connection between the divorced parties, and yet restores this connection by making the woman through her condemnation permanently dependent on the man.
Neither will I investigate how a court comes to treat a suit for divorce like a suit for punishment.
Likewise I will refrain from inquiring whether the young seventeen-year-old wife was in every way responsible in regard to morality — whether she was not through education or circumstances or the fault of another led to take a wrong step.
Nor will I ask whether, before the passing of a sentence which grants a life-long oppressive satisfaction to the offended husband, it ought not to have been investigated and considered in how far he had: through hasty action on his part brought about a union which very soon proved unsuitable for both parties.
All these points I shall dispose of by merely intimating them in order to come to the chief point, which is contained in the question: What sort of a conception did the judges, or rather the lawgivers, have of marriage when they combined an additional punishment with the dissolution of a relationship that has been disastrous to both parties? The "marriage" in question was an evil, a torture, a misfortune to both parties, no matter through whose fault. The thing to be done was, therefore, to put an end to this unhappiness, to dissolve a relationship which had already ceased to be a marriage. To punish one party because the marriage to him was no longer a marriage, is to decree marital felicity and to make marital infelicity a transgression of this decree. It is plain that the judges and law-givers proceeded only from the theological and priestly conception described above, which makes a spook of marriage, and as such sanctifies it without regard to the people for whom the relationship exists. Though the marriage bond may have united two beings who are to each other as water to fire, they must get along with each other — thus the priest and the law-giver decree; and when the consequences of the impossibility to agree come to light, when the water hisses over the edge and the fire sends its sparks beyond the limits, then the judge rushes in between them with his club and punishes the water for being with the fire, and the fire for being with the water. The punishment, which consists in the disappointment of the married couple, in their grief, their discord, their unhappiness, and their material disadvantages, does not seem to the priest a sufficient revenge for an unfortunate choice; no, he must create still another punishment, and see to it that the misfortune is prolonged as much as possible and is not forgotten for a lifetime.