Chapter XV: Part I: , "Foreign Countries;" Part II, "Brit. Colonies"(London, (6)

[Footnote 332: Read, for instance, the complaint of Right Rev.
G. F. Browne, bishop of Stepney, in his _Marriage of Divorced
Persons in Church: Two Sermons Preached in St. Paul's Cathedral
on Feb. 16 and 23, 1896_. The author seems to pine for the good
old days before the act of 1857 when "things were different;"
when, thanks to the singular merits of the old system, the
"difficulty and cost of a special Act" of Parliament made
separations _a vinculo_ very few; when that evil statute had not
yet caused a "horrible familiarity with the idea of divorce"
(42). Compare LUCKOCK, _Hist. of Marriage_, 197-209, who likewise
laments the desecration of the church through the celebration
of the marriage of divorced persons; while he also condemns the
alleged "connivance on the part of the Church of England" in
the violation of the doctrine of indissolubility through the
"issue of licences to divorced persons to remarry from Diocesan
Registrars, ostensibly with the sanction of our own Bishops." He
gives extracts from the _Report_ of the lower house of the York
Convocation (1894), which denounces the two practices mentioned,
as also the "admission of persons who have entered into such
unions to Holy Communion." Technically such a license is a
"dispensation" which the bishop may refuse. It is often refused,
as in the "Instructions issued to Surrogates in the Diocese of
Lichfield": HAMMICK'S _Marriage Law_, 362, and n. _a._ On these
questions see GEARY, _Marriage and Family Relations_, 577-93,
giving extracts from the proceedings of the Lambeth Conference,
(1888), and the Convocation of Canterbury at various times, as
also from the opinions of individual bishops and ministers.]

The act of 1857 directs that, before granting a decree, the court shall "satisfy itself, so far as it reasonably can, not only as to the facts alleged," but also whether there has been any collusion between the petitioner and either of the respondents, or whether there is any bar or counter-charge against the petitioner.[333] But no special procedure was created for making the inquiry suggested, "nor could a stranger without any legal private interest intervene."[334] The necessary machinery for that purpose was provided by the Matrimonial Causes Act[335] of 1860, which rests upon the theory "that the public is interested in seeing that no marriage is dissolved except on certain grounds."[336] Two distinct stages in the proceedings for a dissolution of wedlock are prescribed. If a sentence of divorce be rendered, it must always in the first instance be a decree _nisi_. Only after an interval of six months, unless a shorter time be set by the court, can such a decree be made _absolute_. In the meantime, the queen's proctor, or any member of the public, whether interested in the suit or not, may "intervene" to show collusion or the suppression of material facts;[337] and in case of such intervention the court shall deal with the cause "by making the decree absolute, or by reversing the decree _nisi_," or by conducting further examination, as "justice may require."

[Footnote 333: 20 and 21 Vict., c. 82, secs. 29-31: _Statutes at
Large_, XCVII, 538.]

[Footnote 334: So decided in Y. _v._ Y. (1860): 1 SWABEY AND
TRISTRAM, _Reports_, 598-600; GEARY, _op. cit._, 249, 261.]

[Footnote 335: 23 and 24 Vict., c. 144. For the discussion of
the bill see HANSARD, _Parl. Debates_, 3d series, CLX, 1628-31,
1734-42. _Cf._ also GLASSON, _Le mariage civil et le divorce_,
322 ff.; GEARY, _op. cit._, 261 n. 6; HARRISON, _The Laws of
Probate and Divorce_, 141 ff.]

[Footnote 336: Lord Hannen, in the celebrated case of Crawford
_v._ Crawford (1886), 11 P. D., 150-58, where the queen's proctor
is allowed to intervene to prove a previous decision unjust.
See also GEARY, _op. cit._, 257 n. 2, 262, where this case is
summarized.]

[Footnote 337: 23 and 24 Vict., c. 144, sec. 7. The "intervener
cannot be the respondent, or any one actually instigated by
him or her, or his or her nominee; but the mere fact that the
intervener may be (as he usually is) the friend or relative
of the respondent is no objection."--GEARY, _op. cit._, 263,
264: Howarth _v._ Howarth (1884), 9 P. D., 218-31; Forster _v._
Forster (1863), 3 SWABEY AND TRISTRAM, _Reports_, 158-60. The
queen's proctor may intervene as one of the public. Only the
petitioner can apply to have a decree _nisi_ made absolute,
but in long default of such application the respondent may ask
to have the petition dismissed. Decrees _nisi_ "only apply
to petitions for dissolution of marriage and not to judicial
separations, restitution of conjugal rights, or jactitation;" but
by 36 Vict., c. 31, they do apply to nullity suits: GEARY, _op.
cit._, 249, 250 nn. 355, 356.]

Secondly, the present English law allows a decree for "judicial separation" with the "same force and the same consequences" as the former sentence of divorce _a mensa et thoro_, which is abolished by the act of 1857.[338] To such a decree either the husband or the wife is entitled on the ground of adultery, cruelty, or two years' desertion;[339] provided no legal bar to the petition such as condonation, cruelty, or a separation deed, be established. At the prayer of the petitioner, or when the evidence is insufficient to warrant a decree of complete divorce, a judicial separation may be granted in a suit brought for dissolution of marriage.[340] After such separation the wife is considered as a _feme sole_ with respect to property, contracts, wrongs, suing and being sued; and her husband is not liable for her engagements.[341] In place of the old action at law for "criminal conversation" a prayer for damage against the wife's paramour may be joined with the petition for judicial separation or for dissolution of wedlock; or the aggrieved husband may make separate application for indemnity.[342] Adultery thus becomes a mere "private injury" and not a crime. The damage recovered may be "applied by the court for the benefit of the children of the marriage or for the maintenance of the wife." When the wife is the guilty person and is entitled to property in possession or in reversion, the court, at its discretion, may settle "such property, or any part of it, on the innocent party, or on the children of the marriage."[343] The rules, principles, and procedure observed in the old ecclesiastical courts are to be followed by the civil judge in a suit for judicial separation except as otherwise provided by statute.[344]

[Footnote 338: 20 and 21 Vict., c. 85, secs. 7, 16, 23, 25, 26:
_Statutes at Large_, XCVII, 533, 534, 536, 537. On the law for
judicial separation see GEARY, _op. cit._, 352-59; HARRISON, _The
Laws of Probate and Divorce_, 148-53; WOOLSEY, _Divorce_, 175.]

[Footnote 339: By the Matrimonial Causes Act of 1884, 47 and
48 Vict., c. 68, sec. 5, failure to respond to a decree for
restitution of conjugal rights, even for a less time than two
years, is made equivalent to desertion.]

[Footnote 340: GEARY, _op. cit._, 353, 354.]

[Footnote 341: Except when alimony has been decreed and is in
arrear the husband is liable for necessaries furnished his wife:
20 and 21 Vict., c. 85, secs. 25, 26: _Statutes at Large_, XCVII,
537. _Cf._ HARRISON, _op. cit._, 152, 153; GEARY, _op. cit._,
424.]

[Footnote 342: 20 and 21 Vict., c. 85, sec. 33: _Statutes at
Large_, XCVII, 539. _Cf._ Mason _v._ Mason (1883), 8 P. D.,
21-23, C. A.; also WOOLSEY, _Divorce_, 177; GEARY, _op. cit._,
354, 255-61; HARRISON, _op. cit._, 182, 183.]

[Footnote 343: WOOLSEY, _Divorce_, 177; 20 and 21 Vict., c. 85,
secs. 33, 45: _Statutes at Large_, XCVII, 539, 541.]

[Footnote 344: 20 and 21 Vict., c. 85, sec. 22: _Statutes at
Large_, XCVII, 536; _cf._ also HARRISON, _op. cit._, 117.]

In the third place, by the existing law provision is made for what is commonly called "magisterial separation." The "separation order," presently to be considered, is one of several remedial devices introduced by various statutes in the injured wife's behalf. Thus the act of 1857 enables a woman deserted by her husband to apply to a local court of summary jurisdiction, or, if she prefer, to the high divorce court of the kingdom, for an order to protect her subsequently acquired earnings or property from being seized by him or any of his creditors.[345] By this "protection order" the wife is to be in the same position as to property and contracts, suing and being sued, as if she had obtained a decree of judicial separation.[346] In all respects she is treated as a _feme sole_. For a number of years after it was first introduced the protection order was a means of real redress; for then, according to the principles of the barbarous laws of the Middle Ages which still survived, a married woman without settlements had practically no property rights at all during her husband's lifetime. Her landed property at marriage passed into his control; her chattels and personal effects of every description became absolutely his; and she had no legal power to dispose even of the wages of her own toil.[347] The protection order merely gave the wife her own, preventing the man who had basely abandoned her without making any provision for her support from appropriating the wages or the property which she might thereafter gain. More than this it did not do. "So to a poor wife a protection order was but little, if any, advantage, and now seems absolutely useless. For it did not relieve her from cohabitation, it did not compel the husband to pay her any alimony, and it did not permit her to pledge his credit for necessaries."[348] Since the Married Women's Property Acts, therefore, notably those of 1870 and 1882, by which many of the worst evils of the old system have been remedied,[349] the protection order has been of little avail. Accordingly, a new measure of relief was adopted. The act of 1886,[350] in case of desertion, provides that any two justices in petty sessions or any stipendiary magistrate may make a "maintenance order" when they "are satisfied that the husband, being able wholly or in part to maintain his wife and family has wilfully refused and neglected to do so." The maintenance order requires the husband to "pay to the wife such weekly sum, not exceeding two pounds, as the justices or magistrate may consider to be in accordance with his means and with any means the wife may have for her support and the support of her family;" and the payment of the sum so ordered may be enforced by distress or by imprisonment if necessary.[351] Unlike the protection order, the order for maintenance is not expressly declared to be equivalent to a judicial separation; so it is inferred that a husband may "at any moment terminate the desertion," and require to be taken back by the wife who will "be in default" for refusal.[352]

[Footnote 345: Application may be made to a police or petty
sessional court and to the Court for Divorce and Matrimonial
Causes or its successor, the Probate and Divorce Division. _Cf._
20 and 21 Vict., c. 85, sec. 21: _Statutes at Large_, XCVII, 535,
536; also GEARY, _op. cit._, 360 ff., 425 ff.; HARRISON, _op.
cit._, 176, 177; GLASSON, _Le mariage civil et le divorce_, 323:
ERNST, _Marriage and Divorce_, 53.]

[Footnote 346: 20 and 21 Vict., c. 85, sec. 21: _Statutes at
Large,_ XCVII, 536.]

[Footnote 347: For a good summary of the old law as to property
rights of married women see GLASSON, _Hist. du droit_, II, 284;
IV, 157-59; V, 103 ff.; VI, 162; GEARY, _op. cit._, 184 ff.;
and especially SWINDEREN, "Ueber das Güterrecht der Ehefrau in
England," _ZVR._, V, 275 ff.]

[Footnote 348: GEARY, _op. cit._, 363, 364.]

[Footnote 349: On these and other statutes giving the married
woman control of her property see SWINDEREN, _op. cit._, 278 ff.;
GLASSON, _op. cit._, VI, 193 ff.; and MONTMORENCY'S valuable
article, "The Changing Status of a Married Woman," _Law Quart.
Review_, XIII, 192 ff.]

[Footnote 350: 49 and 50 Vict., c. 52. On the "maintenance order"
see GEARY, _op. cit._, 363, 368-70; HARRISON, _op. cit._, 178,
179.]

[Footnote 351: It is to be enforced as under an order of
affiliation; but that is by distress, or, in default of distress,
by imprisonment: GEARY, _op. cit._, 366, 369, 415.]

[Footnote 352: _Ibid._, 370.]

By the protection and maintenance orders a deserted wife is secured in the enjoyment of her own property or is given a just share in her delinquent partner's goods. In the meantime, a statute of 1878 attempts to shield her from a husband's brutality through the so-called "separation order."[353] The court is authorized in case of "aggravated assault," if "satisfied that the future safety of the wife is in peril," to order that she shall no longer be bound to live with her husband; that he shall render to her such weekly alimony[354] as may seem just; and to place the children in her custody.[355] This order for "magisterial separation," as it is called, has the "effect in all respects of a decree of judicial separation on the ground of cruelty." Like the protection, and probably also the maintenance, order, it does not preclude the wife's right, when she sees fit, to apply for a judicial separation or even for a dissolution of marriage.[356]

[Footnote 353: 41 Vict., c. 19. On the separation order see
GEARY, _op. cit._, 364 ff., 424, 425; HARRISON, _op. cit._, 177,
178.]

[Footnote 354: The weekly amount and the manner of enforcing
payment are expressed in exactly the same terms as later adopted
in the act of 1886 for the maintenance order.]

[Footnote 355: This order, like that for maintenance, may be
discharged or varied on proof of the wife's adultery; and the
weekly sum may be varied in amount with an alteration in the
amount of the wife's or husband's means: GEARY, _op. cit._, 366,
367, 369, 370.]

[Footnote 356: "If the husband goes out of the jurisdiction
and leaves no tangible goods that are physically seizable, the
wife is without remedy, however large be the husband's property
in stocks and shares, etc., or by way of interest under a
settlement." She may then apply for a judicial separation or a
dissolution of marriage, when "she will obtain alimony in the
usual way; and this will be indeed her only effectual course if
the husband absconds."--GEARY, _op. cit._, 367. Compare Gillet
_v._ Gillet (1889), 14 P. D., 158.]