About no subject, perhaps, are prejudices so rampant as they are about
this question of changing the marriage laws. I am, however, very certain
that I am right here. Nothing but good would follow from this
introduction of plain simple honesty. There would be fewer divorces, and
not more, if our laws were freed from their obsession with sexual
offenses, and divorce was made a question of quiet and careful
consideration, and mutual thought and decision.
There ought certainly to be a period of waiting after the application
for divorce, which should be signed by both the partners of the
marriage. I would suggest that the first application should be made to
lapse of itself unless a further application for its enforcement was
made after a period of--say, two years. Many people will go on with what
they have begun, even if they don't want to do so, because they are not
brave enough publicly to say they have made a mistake. After the second
application a further period of waiting, not less than a year, might be
required before the decree for dissolution of the marriage was made
absolute.
I cannot understand how any honest mind can fail to see the advantages
of this or some similar plan of divorce by mutual desire and
arrangement, over the present law which forces the committal of perjury
and requires adultery; nor can I find any reason why freedom should not
be granted, when the marriage is childless and both partners, after
sufficient deliberation, desire its dissolution. Probably it would be
wiser, as a further necessary safeguard against too hasty parting, to
require the marriage to have lasted for five years, before application
for its dissolution could be made. I think, however, in urgent cases,
and wherever it could be shown that the marriage had been entered into
under a mistake and had been continuously unhappy, it should be possible
to remit this requirement.
The case where one partner only of the marriage desires its dissolution
is much more difficult, and cannot, I think, be settled with the same
justice. I would, however, point out that the same situation is common
before marriage, when an engagement is broken by one or other of the
lovers, though, of course, the pain and injury (if such words can be
used in this connection) must be much greater after marriage. The law
allows in these cases compensation to be claimed by the injured partner
for the harm suffered, and, though no one can uphold these breach of
promise cases (which have increased so unfortunately in the war-period)
it should be possible to avoid a similar sordidness. The establishment
of right to compensation is not a new thing in divorce; used in the way
I suggest it would serve as a safeguard against a too hasty escape from
marriage, as well as being an act of justice for the partner who wished
for the divorce to compensate, as fully as his or her means or working
capacity permitted, the one who desired the continuance of the marriage.
The amount of compensation offered, as well as the amount claimed, if
there was not an agreement between the partners, should be stated when
application for the divorce is made; and this question should be settled
before any further proceedings are allowed. The required periods of
waiting would, of course, be enforced.
It may be interesting to my readers to learn that this principle of
compensation, given by the partner who claims divorce to the one who
does not desire it, is one that is common among many primitive peoples,
especially wherever customs of maternal descent prevail.[106:1] It is
practiced, to give one instance, by the Khasis, a maternal people of the
hill tribes of East India; it affords an example of how much more
wisely, because more simply, these matters are sometimes arranged,
before civilization destroys our common sense.