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DIVORCE IN

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Originally appearing in Volume V08, Page 342 of the 1911 Encyclopedia Britannica.
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DIVORCE IN ENGLAND 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 Moro the main grounds allowed by Roman canon law, adultery and cruelty (Ayliffe, 22; Co. Lit. 102; I 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 arch-bishop of York, known as the Conststory 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 1o5th 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 writersis probably to be found in Clarke's Praxis (p. 14): " Si maritus fuerit erga uxorem crudelis et ferax ac mortem comminatus et machinatus fuerit, vel earn 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, I 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 reason-able 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 set-off 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 kintl. A learned judge, recalling the classical anecdote of Maecenas and Galba, said, " A husband is not permitted to say non omnibus dormio." The 338 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 questipn 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 jury 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[ENGLAND 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 Ref ormation.—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 185o 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 thorn. You should then have brought an action in the courts of common law and re-covered, 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' 857.-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 declinedto 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 18or 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.' 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. 1 In Constantinidi v. Constantinidi and Lance (1903), in which both parties were guilty of misconduct, it was held by Sir Francis Jeune (Lord St Helier) that where a wife has by her misconduct broken up the home (the husband's misconduct not having conduced to the wife's adultery) the court would exercise its discretion in favour of the husband petitioner, and, further, the wife being a rich woman, it was justifiable to give her husband a portion of her income, in order to preserve to him the position he would have occupied as her husband, the broad principle being that a guilty respondent should not be allowed to profit by divorce. But further litigation concerning this case occurred as to the variation of the marriage settlements in favour of the husband, and the decision of the court of appeal in July 1905 considerably modified the decision of Sir Francis Jeune. —Ed. E. B.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 186o 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 with-out 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 lawon 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 (r) 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 £5 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 £2 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 i 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.2 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 It is to be noted that by a decision of the court of appeal in Harriman v. Harriman in 1909, where a wife has been deserted by her husband and has obtained a separation order within two years from the time when the desertion commenced, she loses her right to plead desertion under the Matrimonial Causes Act 1857, and is therefore not entitled to a divorce after two years' desertion, upon proof of adultery. See also Dodd v. Dodd, 1906, 22 T. L. R. 484. 2 In 1 a Royal Commission was appointed to inquire into the law of divorce, with special reference to the position of the poorer classes. 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 re-straining 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 186o 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 188o . . 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 187o . 351 1886 . 708 1902 987 1871 . 384 1887 . . 662 1903 - - 914 1872 . 374 1888 . . 68o 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 353 393 414 401 383 429 Presented by husbands . Presented by wives . . 220 280 269 243 262 323 Petitions for Judicial Separa- 4 3 2 4 4 5 tion- Presented by husbands Presented by wives . . to6 96 96 102 78 87 Totals 357 396 416 405 387 434 Presented by husbands 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 thescale 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.
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