Chapter XII: Act 1890 (6)

_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)