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.