Under family law I group marriage, divorce, guardianship, and
inheritance, and I shall assume, for the purposes of my forecast,
that the family will continue to exist as an institution and may
even be taken more seriously by the legislators of the future than
by the legislators of to-day, whose collectivist bias has taken the
form of trying to abolish every relationship of the individual except
his relationship to the State as citizen. I am inclined to think
that marriage laws will become more rational, that legitimation by
subsequent marriage will become law in England and Wales as well as in
Scotland, that there will be a law of adoption as on the Continent, and
that there will be a system of divorce by consent recognized as such as
well as divorce for matrimonial offences.
There should be no difficulty as to a law of adoption on Continental
lines. If anyone chooses to adopt a child and expend toil and money on
training and educating the child, that person should have some security
for quasi-parental control. If industrial schools are entitled to
disregard parental emotions, why should not benevolent individuals, be
rewarded for exertions made with the original consent of the parent?
Legitimation by subsequent marriage presents no difficulty except as to
the question of adulterine bastardy. At first sight it seems difficult
to allow legitimation except when the parents of the bastard were
originally capable of marrying; but considering the shocking anomalies
of divorce in England and Wales there is a strong case for legitimating
the adulterine bastard when possible and it has been done in some
British colonies. A compromise may be reached by limiting the period of
such legitimation to, say, twenty-five years from the date of the Act.
Any measure of divorce law reform for England and Wales will merely
bring the country into line with Europe on the one hand and the
Colonies and the United States on the other. I see the divorce court
of the future in two departments. The first department will deal
with divorces by consent, protect all parties from rash and heedless
decisions, adjust question of property, and deal with the problems of
guardianship. I imagine that divorce by consent will be subject to a
time limit of two or three years, and that all separations, whether by
decree or by voluntary deed, will mature into divorces after a certain
period of time. I hope that in the future divorce by consent will have
a time limit as opposed to the present system under which there is none.
The second department will deal with contentious cases in which
injury has been done. The judge will make every preliminary effort to
reconcile the parties, and the strictest privacy will be observed,
according to the Continental custom and to the old usage of nullity
suits in England where impotence was alleged. The present system of
divorce (which is a sort of surgical operation) is carried out rather
like a surgical operation without anæsthetics or aseptic precautions,
in deference to religious prejudice.
As regards the matrimonial offences for which divorce would be granted,
cruelty and desertion will certainly be included among them, and
probably imprisonment in the case of criminal lunatics. If the future
development of the criminal law results in more permanent detention,
then public sentiment will not be so much opposed as it is now to
the possibility of divorcing a spouse condemned to a long sentence
of imprisonment. The same attitude will obviously prevail in regard
to the detention of criminal lunatics, and probably also all other
lunatics where the disease has been continuous for five years and is
pronounced by experts to be incurable. But presumably the lunacy laws
will be thoroughly revised and safeguarded before any divorce for
lunacy becomes possible.
In regard to the financial side of divorce, it is to be hoped that any
alimony given to an innocent wife may at least be reducible if she
marries a wealthy man, and that among the poor the innocent wife will
be given a far better chance of enforcing her claim for alimony than
she is given now. American practice may profitably be followed on this
point. Whether public sentiment will continue to approve the award
of damages to a husband for the loss of his wife remains to be seen.
This may be justified in some cases, as, for instance, where the wife
supports the husband or is a rich woman and her breach of the marriage
contract involves him in pecuniary loss; or where the children, who in
such circumstances are already prejudiced by losing the joint care of
both parents, are also likely to lose financial advantages by reason
of their mother marrying another man. In such a case it does not seem
unfair that the co-respondent should make some provision for them if he
is in a position to do so.
There remains the question of guardianship, whether in relation to
marriage or divorce, and there seems little chance of this being
altered, except that possibly a mother, and especially a mother guilty
of adultery, may have more power in regard to her children than she has
now. Modern opinion is certainly tending to the view that the act of
adultery is not always incompatible with maternal love and efficiency
and that an unchaste mother is at least preferable to a cruel or
mentally deranged mother.
In regard to poor persons, I deal with the question generally in a
later chapter. But while on the subject of divorce, I suggest that
justice must one day be brought to the poor man’s door either through
the county court or the police court or some other court. If police
court separation orders are to mature into divorces, the police
magistrate is obviously the best person to decree a divorce at the end
of the period in question, and possibly he could even hear defended
cases. But trustworthy observers state that the police magistrate is
often quite unjust to a husband accused by a wife, either because he
thinks that all wives are in the right or because the husband is sulky
and verbose. The magistrate could, of course, do his work very much
better if both parties were legally represented, and if police court
solicitors ever form a rota to assist poor persons after the Scottish
fashion, better justice may be done.
I fancy, however, that the problem may be solved as it is in the United
States, by establishing courts of domestic relations. Apparently, these
courts do their work at comparatively little expense; and this work
is by no means confined to matrimonial disputes. The judges do, in
fact, reconcile many husbands and wives and adjust disputes that might
otherwise ruin many homes; but they also step in to regulate questions
of guardianship in cases where regulation is required. The lay reader
may possibly regard this as undue interference with the institution of
the family; but any lawyer acquainted with the beneficent jurisdiction
of the Chancery judges where minors are concerned, would naturally
wish the poor to have the same advantages in this respect as the rich,
and I, therefore, imagine that within fifty years courts of this
description will not only have divorce jurisdiction but will also have
the same powers as the Chancery judges now have over a ward of court.
I shall deal with this question more fully in a later chapter.