In England the law of divorce, originally based on the canon law of
Rome, underwent some, though little, permanent change at the
Reformation, but was profoundly modified by the exercise of the power of
the state through legislation. From the canon law was derived the
principle that divorce could legally take place only by sentence of the
court, and never at the will of the parties. Complete divorce has never
been governed by any other principle than this; and in so far as an
incomplete divorce has become practicable at the will of the parties, it
has been by the intervention of civil tribunals and contrary to the law
of the ecclesiastical courts. Those courts adopted as ground for divorce
_a mensa et thoro_ the main grounds allowed by Roman canon law, adultery
and cruelty (Ayliffe, 22; Co. Lit. 102; 1 Salk. 162; Godolphin Abridg.
495). The causes of heresy and of entering into religion, if ever they
were recognized in England, ceased to exist at the Reformation.
The principles upon which the English ecclesiastical courts proceeded in
divorce _a mensa et thoro_ are those which are still in force, and which
(with some modification by statutory enactment) have been administered
by judicial tribunals down to the present day. The courts by which the
ecclesiastical law, and therefore the law of divorce, was administered
were, until 1857, the courts of the various dioceses, including that of
the archbishop of Canterbury, known as the Court of Arches, and that of
the archbishop of York, known as the Consistory Court of York; but by
statute a suitor was prevented from taking proceedings in any court
except that determined by the residence of the person against whom
proceedings were taken (23 Hen. VIII. c. 9). From these courts an appeal
lay to delegates appointed in each case by the crown, until the
establishment of the judicial committee of the privy council in 1836,
when the appeal was given to the crown as advised by that body.
The proof of adultery (to which Isidore in his _Book of Etymologies_
gives the fanciful derivation of "_ad alterius thorum_") was not by the
canon law as received in England restricted by the operation of
arbitrary rules. It was never, for example, required, as by the law of
Mahomet, that the act should have been actually seen by competent
witnesses, nor even that the case should be based on any particular kind
of proof. It was recognized that the nature of the offence almost
inevitably precluded direct evidence. One rule, however, appears to have
commended itself to the framers of the canon law as too general in its
application not to be regarded as a principle. The mere confession of
the parties was not regarded as a safe ground of conviction; and this
rule was formulated by a decretal epistle of Pope Celestine III., and,
following it, by the 105th of the Canons of 1604. This rule has now been
abrogated; and no doubt it is wiser not to fetter the discretion of the
tribunal charged with the responsibility of deciding particular cases,
but experience of divorce proceedings tends to confirm the belief that
this rule of the canon law was founded on an accurate appreciation of
human nature.
Although, therefore, with the above exception, no strict rules of the
evidence necessary to establish adultery have ever been established in
the English courts, experience has indicated, and in former days judges
of the ecclesiastical courts often expressed, the lines upon which such
proof may be expected to proceed. It is necessary and sufficient, in
general, to prove two things--first the guilty affection towards each
other of the persons accused, and, secondly, an opportunity or
opportunities of which, if so minded, their passion may have been
gratified. It is obvious that any strong proof on either of these points
renders strict proof on the other less needful; but when proof on both
is afforded, the common sense of a tribunal, acting with a knowledge of
human nature, may be trusted to draw the inevitable conclusion.
The definition of cruelty accepted by the ecclesiastical courts as that
of the canon law is the same as that which prevails at the present time;
and the view of the law taken by the House of Lords in _Russell_ v.
_Russell_ (1897 App. Cas. 395) was expressly based on the view of
cruelty taken by the authorities of the ecclesiastical law. The best
definition by older English writers is probably to be found in Clarke's
_Praxis_ (p. 144): "Si maritus fuerit erga uxorem crudelis et ferax ac
mortem comminatus et machinatus fuerit, vel eam inhumaniter verbis et
verberibus tractaverit, et aliquando venenum loco potus paraverit vel
aliquod simile commiserit, propter quod sine periculo vitae cum marito
cohabitare aut obsequia conjugalia impendere non audeat ... consimili
etiam causa competit viro contra mulierem." Lord Stowell, probably the
greatest master of the civil and canon law who ever sat in an English
court of justice, has in one of his most famous judgments (_Evans_ v.
_Evans_, 1790, 1 Hagg. _Consist._ 35) echoed the above language in words
often quoted, which have constituted the standard exposition of the law
to the present day. "In the older cases," he said, "of this sort which I
have had the opportunity of looking into, I have observed that the
danger of life, limb or health is usually insisted as the ground upon
which the court has proceeded to a separation. This doctrine has been
repeatedly applied by the court in the cases which have been cited. The
court has never been driven off this ground. It has always been jealous
of the inconvenience of departing from it, and I have heard no one case
cited in which the court has granted a divorce without proof given of a
reasonable apprehension of bodily hurt. I say an apprehension, because
assuredly the court is not to wait till the hurt is actually done; but
the apprehension must be reasonable: it must not be an apprehension
arising from an exquisite and diseased sensibility of mind. Petty
vexations applied to such a constitution of mind may certainly in time
wear out the animal machine, but still they are not cases of legal
relief; people must relieve themselves as well as they can by prudent
resistance, by calling in the succours of religion and the consolation
of friends; but the aid of courts is not to be resorted to in such cases
with any effect." The risk of personal danger in cohabitation
constituted, therefore, the foundation of legal cruelty. But this does
not exclude such conduct as a course of persistent ill-treatment, though
not amounting to personal violence, especially if such ill-treatment has
in fact caused injury to health. But the person complaining must not be
the author of his or her own wrong. If, accordingly, one of the spouses
by his or her conduct is really the cause of the conduct complained of,
recourse to the court would be had in vain, the true remedy lying in a
reformation of the real cause of the disagreement.
In addition to a denial of the charge or charges, the canon law allowed
three grounds of answer: (1) _Compensatio criminis_, a setoff of equal
guilt or recrimination. This principle is no doubt derived from the
Roman law and it had the effect of refusing to one guilty spouse the
remedy of divorce against the other although equally guilty. It was
always accepted in England, although not in other countries, such as
France and Scotland, which also followed the canon or civil law. In
strictness, recrimination applied to a similar offence having been
committed by the party charging that offence. But a decision (1888) of
the English courts shows that a wife who had committed adultery could
not bring a suit against her husband for cruelty (_Otway_ v. _Otway_ 13
P. D. 141). (2) _Condonation._ If the complaining spouse has, in fact,
forgiven the offence complained of, that constitutes a conditional bar
to any proceedings. The main and usual evidence of such forgiveness is
constituted by a renewal of marital intercourse, and it is
difficult-perhaps impossible-to imagine any case in which such
intercourse would not be held to establish condonation. But condonation
may be proved by other acts, or by words, having regard to the
circumstances of each case. Condonation is, however, always presumed to
be conditional on future good behaviour, and misconduct even of a
different kind revives the former offence. (3) _Connivance_ constitutes
a complete answer to any charge. Nor need the husband be the active
agent of the misconduct of the wife. Indifference or neglect imputable
to a corrupt intention are sufficient. It will be seen presently that
modern statute law has gone further in this direction. It is to be added
that the connivance need not be of the very act complained of, but may
be of an act of a similar kind. A learned judge, recalling the classical
anecdote of Maecenas and Galba, said, "A husband is not permitted to say
_non omnibus dormio_." The ecclesiastical courts also considered
themselves bound to refuse relief if there was shown to be _collusion_
between the parties. In its primary and most general sense collusion was
understood to be an agreement between the parties for the purpose of
deceiving the court by false or fictitious evidence; for example, an
agreement to commit, or appear to commit, an act of adultery. Collusion,
however, is not limited to the imposing of other than genuine evidence
on the court. It extends to an agreement to withhold any material
evidence; and indeed is carried further, and held to extend to any
agreement which may have the effect of concealing the real and complete
truth from the court (see _Churchward_ v. _Churchward_, 1894, p. 161).
This doctrine was of considerable importance even in the days when only
divorces _a mensa et thoro_ were granted, because at that time the
parties were not permitted to separate by consent. At the present day it
has become, with regard to divorce a _vinculo matrimonii_, a rule of
greater and of more far-reaching importance.
The canon law as accepted in England, while allowing divorces of the
nature and for the causes above mentioned, actively interfered to
prevent separation between husband and wife in any other manner. A suit
known as a suit for restitution of conjugal rights could be brought to
compel cohabitation; and on evidence of the desertion of either spouse,
the court ordered a return to the matrimonial home, though it carried no
further its authority as to the matrimonial relations within the home.
To this suit an agreement between the parties constituted no answer. But
an answer was afforded by any conduct which would have supported a
decree of divorce _a mensa et thoro_. It is a question whether, indeed,
the ecclesiastical courts would not have gone further, and refused a
decree of restitution of conjugal rights on grounds which might appear
adequate to justify such refusal, though not sufficient on which to
ground a decree of divorce. The view of the court of appeal and the
House of Lords has given some colour to this opinion, and certainly the
court of appeal has held, although perhaps somewhat hastily, that the
effect of a modern statute has been to allow the court to refuse
restitution of conjugal rights for causes falling short of what would
constitute ground for divorce (_Russell_ v. _Russell_, 1895, p. 315).
The ecclesiastical courts provided for the pecuniary rights of the wife
by granting to her alimony during the progress of the suit, and a proper
allowance after its termination in cases in which she was successful.
Such payments were dependent on the pecuniary means, or _faculties_, as
they were termed, of the husband, and were subject to subsequent
increase or diminution in proper cases. But the ecclesiastical courts
did not deal with the custody of the children of the marriage, it being
probably considered that that matter could be determined by the common
law rights of the father, or by the intervention of the court of
chancery.
The canon law fixed no period of limitation, either in respect of a suit
for divorce or for restitution of conjugal rights; but, as regards at
least suits for divorce, any substantial delay might lead to the
imputation of acquiescence or even condonation. To that extent, at
least, the maxim _vigilantibus non dormientibus jura subveniunt_
applied.
It is remarkable that desertion by either party to a marriage, except as
giving rise to a suit for restitution, was not treated as an offence by
canon law in England. It formed no ground for a suit for divorce, and
constituted no answer to such a suit by way of recrimination. It might
indeed deprive a husband of his remedy if it amounted to connivance, or
perhaps even if it amounted only to culpable neglect.
The canon law, as administered in England, has kept clear the logical
distinction which exists between dissolving a marriage and declaring it
null and void. The result has been that, in England at least, the two
proceedings have never been allowed to pass into one another, and a
complete divorce has not been granted on pretence of a cause really one
for declaring the marriage void _ab initio_. But for certain causes the
courts were prepared to declare a marriage null and void on the suit of
either party. There is, indeed, a distinction to be drawn between a
marriage void or only voidable, though in both cases it became the
subject of a similar declaration. It was void in the cases of incapacity
of the parties to contract it, arising from want of proper age, or
consanguinity, or from a previous marriage, or from absence of consent,
a state of things which would arise if the marriage were compelled by
force or induced by fraud as to the nature of the contract entered into
or the personality of the parties. It is to be remarked that, in England
at least, the idea of fraud as connected with the solemnization of
marriage has been kept within these narrow limits. Fraud of a different
kind, such as deception as to the property or position of the husband or
wife, or antecedent impurity of the wife, even if resulting in a
concealed pregnancy, has not in England (though the last-mentioned cause
has in other countries) been held a ground for the vitiation of a
marriage contract. A marriage was voidable, and could be declared void,
on the ground of physical incapacity of either spouse, the absence of
intercourse between the parties after a sufficient period of opportunity
being almost, if not quite, conclusive on this subject.
With regard to one cause of nullity the legislation interfered from
consideration, it is said, of a case of special hardship. Before the
Marriage Act of 1835 marriages within the prohibited degrees of
consanguinity and affinity were only voidable by a decree of the court,
and remained valid unless challenged during the lifetime of both the
parties. But this act, while providing that no previous marriage between
persons within the prohibited degrees should be annulled by a decree of
the ecclesiastical court pronounced in a suit depending at the time of
the passing of the act, went on to render all such marriages thereafter
contracted in England "absolutely null and void to all intents and
purposes whatever."
Another suit was allowed by the ecclesiastical courts which should be
mentioned, although its bearing on divorce is indirect. This was the
suit for _jactitation of marriage_, which in the case of any person
falsely asserting his or her marriage to another, allowed such person to
be put to perpetual silence by an order of the court. This suit, which
has been of rare occurrence (though there was an instance, _Thompson_ v.
_Rourke_, in 1892), does not appear to have been used for the purpose of
determining the validity of a marriage. The legislature, has, however,
in the Legitimacy Declaration Act of 1858, provided a ready means by
which the validity of marriages and the legitimacy of children can be
determined, and the procedure provided has repeatedly been utilised.
It should be added, as a matter closely akin to the proceedings in the
ecclesiastical courts, that the common law took cognizance of one phase
of matrimonial relations by allowing an action by the husband against a
paramour, known as an action for criminal conversation. In such an
action a husband could recover damages estimated according to the loss
he was supposed to have sustained by the seduction and loss of his wife,
the punishment of the seducer not being altogether excluded from
consideration. Although this action was not unfrequently (and indeed,
for the purposes of a divorce, necessarily) brought, it was one which
naturally was regarded with disfavour.
_Effect of the Reformation._--Great as was the indirect effect of the
Reformation upon the law of divorce in England, the direct effect was
small. It might, indeed, have been supposed that the disappearance of
the sacramental idea of marriage entertained by the Roman Church would
have ushered in the greater freedom of divorce which had been associated
with marriage regarded as a civil contract. And to some extent this was
the case. It was for some time supposed that the sentences of divorce
pronounced by the ecclesiastical courts acquired the effect of allowing
remarriage, and such divorces were in some cases granted. In _Lord
Northampton's_ case in the reign of Edward VI. the delegates pronounced
in favour of a second marriage after a divorce _a mensa et thoro_. It
was, however, finally decided in _Foljambe's_ case, in the 44th year of
Elizabeth, that a marriage validly contracted could not be dissolved for
any cause. But the growing sense of the right to a complete divorce for
adequate cause, when no longer any religious law to the contrary could
be validly asserted, in time compelled the discovery of a remedy. The
commission appointed by Henry VIII. and Edward VI. to reform the
ecclesiastical law drew up the elaborate report known as the
_Reformatio Legum_, and in this they recommended that divorces _a mensa
et thoro_ should be abolished, and in their place complete divorce
allowed for the causes of adultery, desertion and cruelty. These
proposals, however, never became law. In 1669 a private act of
parliament was granted in the case of Lord de Roos, and this was
followed by another in the case of the duke of Norfolk in 1692. Such
acts were, however, rare until the accession of the House of Hanover,
only five acts passing before that period. Afterwards their number
considerably increased. Between 1715 and 1775 there were sixty such
acts, in the next twenty-five years there were seventy-four, and between
1800 and 1850 there were ninety. In 1829 alone there were seven, and in
1830 nine.
The jurisdiction thus assumed by parliament to grant absolute divorces
was exercised with great care. The case was fully investigated before a
committee of the House of Lords, and not only was the substance of
justice so secured, but the House of Lords further required that
application to parliament should be preceded by a successful suit in the
ecclesiastical courts resulting in a decree of divorce _a mensa et
thoro_, and in the case of a husband being the applicant, a successful
action at common law and the recovery of damages against the paramour.
In this way, and also, if needful, on its own initiative, the House of
Lords provided that there should be no connivance or collusion. Care was
also taken that a proper allowance was secured to the wife in cases in
which she was not the offending party. This procedure is still pursued
in the case of Irish divorces.
It is obvious, however, that the necessity for costly proceedings before
the Houses of Parliament imposed great hardship on the mass of the
population, and there can be little doubt that this hardship was deeply
felt. Repeated proposals were made to parliament with a view to reform
of the law, and more than one commission reported on the subject. It is
said that the final impetus was given by an address to a prisoner by Mr
Justice Maule. The prisoner's wife had deserted him with her paramour,
and he married again during her lifetime. He was indicted for bigamy,
and convicted, and Mr Justice Maule sentenced him in the following
words:--"Prisoner at the bar: You have been convicted of the offence of
bigamy, that is to say, of marrying a woman while you had a wife still
alive, though it is true she has deserted you and is living in adultery
with another man. You have, therefore, committed a crime against the
laws of your country, and you have also acted under a very serious
misapprehension of the course which you ought to have pursued. You
should have gone to the ecclesiastical court and there obtained against
your wife a decree _a mensa et thoro_. You should then have brought an
action in the courts of common law and recovered, as no doubt you would
have recovered, damages against your wife's paramour. Armed with these
decrees, you should have approached the legislature and obtained an act
of parliament which would have rendered you free and legally competent
to marry the person whom you have taken on yourself to marry with no
such sanction. It is quite true that these proceedings would have cost
you many hundreds of pounds, whereas you probably have not as many
pence. But the law knows no distinction between rich and poor. The
sentence of the court upon you, therefore, is that you be imprisoned for
one day, which period has already been exceeded, as you have been in
custody since the commencement of the assizes." The grave irony of the
learned judge was felt to represent truly a state of things well-nigh
intolerable, and a reform in the law of divorce was felt to be
inevitable. The hour and the man came in 1857, the man in the person of
Sir Richard Bethell (afterwards Lord Westbury), then attorney-general.
_The Act of 1857._--Probably few measures have been conceived with such
consummate skill and knowledge, and few conducted through parliament
with such dexterity and determination. The leading opponent of the
measure was Mr Gladstone, backed by the zeal of the High Church party
and inspired by his own matchless subtlety and resource. But the contest
proved to be unequal, and after debates in which every line, almost
every word, of the measure was hotly contested, especially in the House
of Commons, the measure emerged substantially as it had been
introduced. Not the least part of the merit and success of the act of
1857 is due to the skill which, while effecting a great social change,
did so with the smallest possible amount of innovation. The act (which
came into operation on the 1st of January 1858) embodied two main
principles: 1. The constitution of a lay court for the administration of
all matters connected with divorce. 2. The transfer to that court, with
as little change as possible, of the powers exercised in matrimonial
matters by (a) the House of Lords, (b) the ecclesiastical courts, (c)
the courts of common law.
_The Constitution of the Court._--The new court, termed "The Court for
Divorce and Matrimonial Causes," was constituted by the lord chancellor,
the chiefs and the senior puisne judges of the three courts of common
law, and the judge of the court of probate (which was also established
in 1857), but the functions of the court were practically entrusted to
the judge of the court of probate, termed the "Judge Ordinary," who thus
in matters of probate and divorce became the representative of the
former ecclesiastical jurisdiction. The judge ordinary was empowered
either to sit alone or with one or more of the other judges to
constitute a full court. The parties to a suit obtained the right of
trial by jury of all disputed questions of fact; and the rules of
evidence of the common law courts were made to apply. An appeal to the
full court was given in all matters, which the judge ordinary was
enabled to hear sitting alone.
1. To this court were transferred all the powers of the ecclesiastical
courts with regard to suits for divorce _a mensa et thoro_, to which the
name was given of suits for "judicial separation," nullity, restitution
of conjugal rights, and jactitation of marriage, and in all such
proceedings it was expressly enacted (sec. 22) that the court should act
on principles and rules as nearly as possible conformable to the
principles and rules of the ecclesiastical courts. Judicial separation
could be obtained by either husband or wife for adultery, or cruelty, or
desertion continued for two or more years.
2. There were also transferred to the court powers equivalent to those
exercised by the legislature in granting absolute divorce. The husband
could obtain a divorce for adultery, the wife could obtain a divorce for
adultery coupled with cruelty or desertion for two or more years, and
also for incestuous or bigamous adultery, or rape, or unnatural
offences. The same conditions as had been required by the legislature
were insisted on. A petition for dissolution (sec. 30) was to be
dismissed in case of connivance, condonation or collusion; and further,
the court had power, though it was not compelled, to dismiss such
petition if the petitioner had been guilty of adultery, or if there had
been unreasonable delay in presenting or prosecuting the petition, or if
the petitioner had been guilty of cruelty or desertion without
reasonable excuse, or of wilful neglect or misconduct conducing to the
adultery. The exercise of these discretionary powers of the court, just
and valuable as they undoubtedly are, has been attended with some
difficulty. But the view of the legislature has on the whole been
understood to be that the adultery of a petitioner should not constitute
a bar to his or her proceeding, if it has been caused by the misconduct
of the respondent, and that cruelty should not constitute such a bar
unless it has caused or contributed to the misconduct of the respondent.
But the court, while regarding its powers as those of a judicial and not
an arbitrary discretion, has declined to fetter itself by any fixed rule
of interpretation or practice.
It is to be observed that this act assigned a new force to desertion.
The ecclesiastical law regarded it only as suggestive of connivance or
culpable neglect. But the act of 1857 made it (1) a ground of judicial
separation if continued for two years, (2) a ground in part of
dissolution of marriage if continued for the same period, (3) a bar, in
the discretion of the court, to a petition for dissolution, though it
was not made in a similar way any bar to a suit for judicial separation.
It is also to be observed that the act was confined to causes of divorce
recognized by the ecclesiastical law as administered in England. It did
not either extend the causes of a suit for nullity by adding such
grounds as 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 court, with registrars
representing each branch of the jurisdiction. Appeals lie to the court
of appeal, and thence to the House of Lords.
In 1884 the legislature interfered to prevent imprisonment being the
result of disobedience to an order for restitution of conjugal rights.
That mode of enforcing the order of the court was abolished, and the
matter was left to a proper adjustment of the pecuniary relations of the
husband and wife; and a respondent disobeying such an order was held to
be guilty of desertion without reasonable cause, such desertion having
further given to it a similar effect to that assigned to desertion for
two years or upwards. The effect of this provision has been that the
suit for restitution of conjugal rights is most frequently brought for
the purpose of shortening the time within which a wife can obtain a
decree for dissolution of marriage.
Proceedings in the divorce court have shown the improvement in the law
of evidence which has been effected with regard to other legal
proceedings. The act of 1857 made an inroad on the former law, which
prohibited evidence being given by parties interested in the
proceedings, by allowing a petitioner (sec. 43) to be called and
examined by order of the court, absolving such petitioner, however, from
the necessity of answering any question tending to show that he or she
had been guilty of adultery. In the next year power was given to the
court to dismiss any person, with whom a party to the suit was alleged
to have committed adultery, from the suit if there should not appear to
be sufficient evidence against him or her, the object being to allow
such person to give evidence; and in 1859 it was provided that, on a
petition by a wife for a divorce on the grounds of cruelty or desertion
with adultery, the husband and wife could be competent and compellable
witnesses as to the cruelty or desertion. A few years later, however, in
1869, the subject was finally dealt with by repealing all previous rules
which limited the powers to give evidence on questions of adultery with
the safeguard that no witness in any proceeding can be asked or bound to
answer any question tending to show that he or she has been guilty of
adultery, unless in the same proceeding such witness shall have given
evidence in disproof of his or her alleged adultery. It has been held
that the principles of these enactments apply to interrogatories as well
as to evidence given in court.
It is a most remarkable omission in the act of 1857, especially when we
remember the high legal authority from whom it proceeded, that the act
nowhere defines the class of persons with regard to whom the
jurisdiction of the court should be exercised. This omission has given
rise to a misapprehension of the law which, though now set at rest,
prevailed for a considerable period, and has undoubtedly led to the
granting of divorce in several cases in which it could not legally be
given. It was supposed that the court could grant a dissolution of
marriage to all persons who had anything more than a casual and fleeting
residence within the jurisdiction of the court; and this view, although
its correctness was doubted by Lord Penzance, the judge of the divorce
court, was upheld by a majority of the judges of the court of appeal in
the case of _Niboyet_ v. _Niboyet_ (4 P. D. 1). It was supposed that
such residence gave what was termed a matrimonial domicile. But this
view was undoubtedly erroneous as regards dissolution of marriage,
although probably correct as regards judicial separation, and the true
view is no doubt that indicated with great learning and ability by Lord
Watson in a judgment given by him in the privy council in the case of
_Le Mesurier_ v. _Le Mesurier_ (1895, App. Cas. 517), that the only true
test of jurisdiction for a decree of divorce altering the status of the
parties to a marriage is to be found in the domicile of the
spouses--that is to say, of the husband, as the domicile of a wife
follows that of her husband--at the time of the divorce. Domicile means
a person's permanent home, the place at which he resides with no
intention of making his home elsewhere, and, if he leaves it, with the
intention of returning to it.
It is now also clearly recognized as the law of England that the English
courts will not recognize a divorce purporting to be made by a foreign
tribunal with regard to persons domiciled in England. For a considerable
time doubt appears to have clouded the law on this subject. In a famous
case known as _Lolley's_ case, decided in 1812, the judges of England
(the point arose in connexion with a criminal charge) unanimously held
"that no sentence or act of any foreign country or any state could
dissolve an English marriage _a vinculo matrimonii_ for grounds on which
it was not liable to be dissolved _a vinculo matrimonii_ in England."
This case has been frequently understood as deciding that a marriage
celebrated in England cannot be dissolved elsewhere, and on this point
the courts of Scotland differ from the view supposed to be taken by the
English judges. But the matter has been fully explained in one of the
most masterly of Lord Hannen's judgments (_Harvey_ v. _Fairnie_, 5. P.
D. 154), afterwards upheld by the House of Lords in 1882 (8 App. Cas.
43); and it is now clear that while the parties are domiciled in this
country no decree of any foreign court dissolving their marriage will be
recognized here, unless it proceed on the grounds on which a divorce may
be obtained in this country, and even the exception just mentioned
appears to rest rather on reasoning and principle than on the authority
of any decided case. This principle received the highest sanction in the
prosecution of Earl Russell for bigamy before the House of Lords (1901),
in which it was held that, where a divorce had been refused him in
England, an American divorce would not relieve a man from the guilt of
marrying again.
_Summary Proceedings for Separation._--The legislature has sought to
extend the relief afforded by the courts in matrimonial causes by a
procedure fairly to be considered within the reach of all classes. In
1895 an act was passed which re-enacted in an improved form the
provisions of an act of 1878 of similar effect. By the act of 1895 power
was given to a married woman whose husband (1) has been guilty of an
aggravated assault upon her within the Offences against the Person Act
1861, or (2) convicted on indictment of an assault on her and sentenced
to pay a fine of more than L5 or to imprisonment for more than two
months, or (3) shall have deserted her, or (4) been guilty of persistent
cruelty to her or wilful neglect to maintain her or her infant children,
and by such cruelty or neglect shall have caused her to leave and live
apart from him, to apply to a court of summary jurisdiction and to
obtain an order containing all or any of the following provisions:--(1)
that the applicant be not forced to cohabit with her husband, (2) that
the applicant have the custody of any children under sixteen years of
age, (3) that the husband pay to her an allowance not exceeding L2 a
week. The act provides that no married woman guilty of adultery should
be granted relief, but with the very important proviso, altering as it
does the rule of the common law, that the husband has not conduced or
connived at, or by wilful neglect or misconduct conduced to, such
adultery. The provisions of this act[2] have been largely put in force,
and no doubt to the great advantage of the poorer classes of the
community. It will be observed that the act is unilateral, and affords
no relief to a husband against a wife; and the complaint is often heard
that no misconduct of the wife, except adultery, relieves the husband
from the necessity of maintaining her and allowing her to share his
home, unless he can obtain access to the high court.[3]
_Separation Deeds._--Although nothing in the development of the law of
divorce has tended to give to married persons the right absolutely to
dissolve their marriage by consent, and, on the contrary, any such
agreement would be held to be strong evidence of collusion, the view of
the Church expressed in the ecclesiastical law has been entirely
departed from as regards agreements for separation. Such agreements were
embodied in deeds, and usually contained mutual covenants not to sue in
the ecclesiastical courts for restitution of conjugal rights. The
ecclesiastical courts, however, wholly disregarded such agreements, and
considered them as affording no answer to a suit for restitution of
conjugal rights. For a considerable period the court of chancery refused
to enforce the covenant in such deeds by restraining the parties from
proceeding to the ecclesiastical courts. But at last a memorable
judgment of Lord Westbury (1861) asserted the right (_Hunt_ v. _Hunt_, 4
De G. F. & J. 221; see also _Marshall_ v. _Marshall_, 5 P. D. 19) of the
court of chancery to maintain the claim of good faith in this as in
other cases, and restrained a petitioner from suing in the
ecclesiastical court contrary to his covenant. Thereafter these deeds
became common, and no doubt often afford a solution of matrimonial
difficulties of very great value. When the courts of the country became
united under the Judicature Acts, it became practicable to set up in the
divorce division a separation deed in answer to a suit for restitution
of conjugal rights without the necessity of recourse to any other
tribunal.
_Statistics._--The statistics of divorce in England have for some
years been regularly published in the volumes of judicial statistics
published annually by the Home Office.
The number of petitions for divorce (including in the term both
divorce _a mensa et thoro_ and divorce _a vinculo_) for the years from
1858 to 1905 inclusive are as follows:--
1858 326 | 1874 469 | 1890 644
1859 291 | 1875 451 | 1891 632
1860 272 | 1876 536 | 1892 629
1861 236 | 1877 551 | 1893 645
1862 248 | 1878 632 | 1894 652
1863 298 | 1879 555 | 1895 683
1864 297 | 1880 615 | 1896 772
1865 284 | 1881 589 | 1897 781
1866 279 | 1882 481 | 1898 750
1867 294 | 1883 561 | 1899 727
1868 303 | 1884 647 | 1900 698
1869 351 | 1885 541 | 1901 848
1870 351 | 1886 708 | 1902 987
1871 384 | 1887 662 | 1903 914
1872 374 | 1888 680 | 1904 822
1873 416 | 1889 654 | 1905 844
It is probably impossible to account for the variations which the
above table discloses. It was no doubt natural that the year
immediately succeeding the passing of the act which originated
facilities for divorces _a vinculo_ should exhibit a larger number of
divorces than its successors for a considerable period. But there does
not appear to be any adequate cause for the comparative increase which
seems to have prevailed in the decade between 1878 and 1888, unless it
be found in the increase of marriages which culminated in 1873 and
1883, falling after each of those years. The number of marriages again
rose high in 1891 and 1892, and this may account for the increased
number of divorces in 1896 and the following years. But it may
certainly be said with confidence that as compared with the growth of
population the number of divorces in England has shown no alarming
increase.
The total number of petitions in matrimonial causes presented by
husbands exceed those presented by wives, but in no marked degree.
This excess would seem to be due to the fact that the larger number of
petitions for dissolution presented by husbands, owing no doubt to the
difference in the law affecting the two sexes, is not entirely
counterbalanced by the much larger number of petitions for judicial
separation presented by wives. The following figures for various years
may be taken as typical:--
+------------------------------------+------+------+------+------+------+------+
| | 1895 | 1896 | 1897 | 1898 | 1899 | 1905 |
+------------------------------------+------+------+------+------+------+------+
| Petitions for Dissolution-- | | | | | | |
| Presented by husbands | 353 | 393 | 414 | 401 | 383 | 429 |
| Presented by wives | 220 | 280 | 269 | 243 | 262 | 323 |
| Petitions for Judicial Separation--| | | | | | |
| Presented by husbands | 4 | 3 | 2 | 4 | 4 | 5 |
| Presented by wives | 106 | 96 | 96 | 102 | 78 | 87 |
| Totals-- | | | | | | |
| Presented by husbands | 357 | 396 | 416 | 405 | 387 | 434 |
| Presented by wives | 326 | 376 | 365 | 345 | 340 | 410 |
+------------------------------------+------+------+------+------+------+------+
Speaking generally, it may be said that about 70% of the petitions
presented are successful and result in decrees. This percentage has a
tendency, however, to rise.
Attempts have been made to ascertain the classes which supply the
petitioners for divorce, but this cannot be done with such certainty
as to warrant any but the most general conclusions. It may, however,
safely be said that while all classes, professions and occupations are
represented, it is certainly not those highest in the scale that are
the largest contributors. The principles of the act of 1857 have
beyond question been justified by the relief required by and afforded
to the general community.