Chapter IV: Divorce

“Let the British reader study and enjoy, in simplicity of heart, what
is here presented him, and with whatever metaphysical acumen and
talent for Meditation he is possessed of. Let him try to keep a free,
open sense; cleared from the mists of Prejudice, above all from the
paralysis of Cant.”

_Sartor Resartus_, THOMAS CARLYLE.

The history of any legal reform affecting the lives of the poor in this country is pathetic reading. It is generally a jumble of earnest, common-sense petitions from a few obscure social reformers, listless inattention and masterly inaction from governors and rulers, accompanied by a choral anthem to the Most High from the bishops, priests and deacons to leave well alone. If the two latter classes can keep the former class from rousing popular indignation against them, then to every one’s content the question is adjourned to another generation for further consideration.

Certainly the question of divorce reform, which every one who takes an interest in the social life of the poor knows to be of the deepest importance to them, has for many centuries followed the stereotyped course. Fair play to the Church, it was an Archbishop of Canterbury, Thomas Cranmer, who nearly achieved a Law of moderate divorce reform in the reign of Edward VI. Unfortunately the matter never got formally through Parliament, and Cranmer and divorce reform perished together in the fire over against Balliol College, Oxford.

John Milton occurs to mind as a man of eminence who had ideas on the subject born of sad experience which might have been of use to our rulers. He, however, was almost bound to fail to get a hearing at Whitehall, the makers of our King’s speeches having always--according to William Cobbett--been very adverse to the expression of ideas in prose of the Miltonian vintage, and being wont to regard even the ordinary grammatical construction of the English language with suspicion.

So the years rolled on. Great men offered the generations they lived in sane plans of reform which were rejected and neglected, until of a sudden in 1845 the sarcasm of Mr. Justice Maule in his witty speech to a poor bigamist at Warwick Assizes, detailing to him how he ought before re-marrying to have obtained an Act of Parliament for his divorce, roused the people to the absurdity and injustice of the existing law, and after a decent interval of years the popular demand was pacified by the Divorce Act of 1857.

This, however, has been of little use to poor women and of very limited use to any one, although among the upper and middle classes it has no doubt relieved many homes from misery. It did not deal with more than a small percentage of the lives that wanted help, and year by year obscure people recognized and pleaded for its extension. Once again it is to the credit of the legal profession that it was a great lawyer and judge who brought divorce reform into practical politics.

Lord Gorell in 1892 left a big commercial and Admiralty practice to become judge of the Probate, Divorce and Admiralty Division, and there he brought to bear on problems of divorce a mind singularly free from the ecclesiastical prejudices which surround the first two-thirds of the Division and a breezy outlook on human affairs that maybe he had learned from his professional associations with those who go down to the sea in ships.

Lord Gorell, when as Sir John Barnes he took his seat in the Probate Division, was only forty-four years old, and as far as I have heard had no preconceived ideas about divorce reform. The conclusions he ultimately came to sprang from experience. No one who is not case-hardened in ecclesiastic tradition could preside in the Divorce Division without having visions of reform.

The first message that the public received from Lord Gorell as divorce reformer was in the judgment he delivered in Dodd _v._ Dodd, in April, 1906. In this case a wife, whose husband, a drunken wastrel, was living upon her and doing no work, obtained a separation order from him before the magistrates, and after two years, finding he had committed adultery, she petitioned for a divorce. This it was decided she could not have because her husband had never technically deserted her. If he had been an honest man, who had run off with another woman to escape from a shrew, the lady could have divorced him, but there was no machinery for an honest woman, whose husband was a drunken loafer wishing to live on his wife’s means and committing adultery, to obtain a divorce.

But the important part of the judgment socially was that Sir John Barnes called public attention to what the legislature had done in giving the magistrates these wide powers of granting separation orders. The Summary Jurisdiction Act (Married Women), 1895 had been passed through Parliament in modern fashion “almost without anything being said about it--although it gave power to grant non-cohabitation orders in large classes of cases where it did not exist before.” The result had been that numerous orders had been made, over 7,000 in that year, affecting the whole future lives of the parties and their children without any real consideration for the interests of the children, and Sir John Barnes then and there stated his view: “That the direct tendency of these orders appears to be to encourage immorality and to produce deplorable results.”

This is a system of which the Archbishop of York and his colleagues in the Minority Report of the Divorce Commission say: “On the whole the present system of separation orders, while in need of considerable amendment, probably fulfils its purpose fairly well.” To the plain unarchiepiscopal man in the street, unless it is to be presumed that the system is there to promote adultery in man, misery in woman and injustice to children, the judgment of the President of the Divorce Court makes it clear that the present system of separation orders probably fulfils its purpose very badly.

It seems probable that the researches Lord Gorell made in preparing his learned and inspiring judgment in Dodd _v._ Dodd proved to his mind the urgent necessity of divorce reform. He moved, however, with caution, and it was not until July 14, 1909, that he made his great speech in the House of Lords on a resolution that it was expedient to confer divorce jurisdiction upon County Courts in the interest of the poorer classes.

If I had the means I would like to reprint that speech and place it in the hands of every citizen. It was never answered, for there is no answer to be made to it, and at the end of the debate Lord Lansdowne got up and said: “Justice is not difficult to do when you know the facts. My lords, let us have an inquiry and ascertain the facts.” There was no need of an inquiry. Any one who has passed the necessary standards, be he peer or peasant, could read all about it in official returns, statistics, treatises and books on social reform. Still we have had the inquiry, we have ascertained the facts, and yet we are as far away from justice as ever we were.

When the Royal Commission first sat I prophesied that there would be an intolerable deal of talk, but very little business done, and that the chief opposition to any schemes of justice and mercy to the unhappily married would come from the highly-paid clergy and the ecclesiastically-minded laymen.

I take no pleasure in the mean and melancholy triumph of saying “I told you so.” It did not take much foresight to guess that indifference, inertia, and clericalism would win the first few rounds of the fight. What does require a certain amount of steadfastness is to keep your eye on the horizon and continue in the belief that right will ultimately prevail, and go on doing your bit to bring it about.

The years spent on the Royal Commission on Divorce, although they taught the world nothing it did not know before, were not years wholly wasted. The conclusions arrived at were not important, but the evidence of the witnesses telling their stories of ruined lives and desolated homes is there to refer to.

These volumes are of value as an armoury of weapons of facts. The next task is to use them.

The poor in this country have very little power to state their grievances and get them remedied, but Women are in a different case. When the Law and the Woman come up against each other I am not backing the Law, except at long odds with a short time limit. If Woman has made up her mind that Divorce reform is necessary, then we may make up our minds that Divorce reform will come along.

A large number of women gave evidence before the Commission, and I have been reading that evidence again. Women doctors, women of position who work in police courts and visit in the slums, women on Boards of Guardians--in a word, all the women who go out into the world and work and see the world as it is--favour reform of some kind.

Generally the reforms they propose are similar to those ultimately suggested in the Majority Report, namely, that the two sexes should be placed on an equal footing as regards the grounds on which divorce should be obtained, and that divorce should be granted for adultery, desertion, insanity, habitual drunkenness, and long imprisonment.

A few ladies gave evidence on the clerical side, the general effect of which was that there was no demand for reform. One of these good persons had heard so little about the real lives of the poor she visited, that on being asked her opinion about the effect of separation orders, she murmured: “I am afraid I do not know exactly what a separation order is.”

One cannot weigh evidence of that kind against the thoughtful and knowledgeable statements of Dr. Helen Webb, Dr. Ethel Bentham and Miss Margaret Llewellyn Davies. If any one wants proof that Woman is capable of holding her own and doing work of great value in a discussion of legal reform let him read the evidence of these ladies.

Miss Llewellyn Davies had made a detailed investigation of the views and wishes of real working women. She proved conclusively that many intelligent working women are living in a strong hope that reform will come, that they universally condemn the inequality in the grounds for divorce for men and women, and that they believe, knowing the facts as they do, that divorce reform will destroy much wrong and suffering and will ultimately tend to the happiness and stability of married life. Few could read the pages of actual cases she sets out without having his faith in the omnipotence of bishops slightly shaken.

The Archbishop of York in the Minority Report, though agreeing that her evidence must be “reckoned with seriously,” makes the suggestion that “personal bias” might in her case be sufficient to put such a witness out of Court. Why? Miss Davies is the daughter of a well-known divine of the Church of England, and has spent her life ministering to the poor. She is not paid a salary running to thousands of pounds. The State gives her no palace to live in. Where is her “personal bias” unless the words connote knowledge of the facts and intimate contact with the lives of poor women? For a priest to charge lay women workers with being biassed witnesses shows a forgetfulness of the words of the Master concerning motes and beams.

Dr. Ethel Bentham again speaking for the Fabian women’s group set out very clearly the method in which divorce reform should be pursued. In framing new laws, “the starting point,” she said, “should be ordinary principles of justice and equity without regard to expediency or vested interests of any kind, whether of the rich or of one sex against the other, or of any trade, profession or calling, and especially we feel that no section of the religious world, however numerous or influential, should be able through the law of the land to impose burdens on the conscience of other sections who think differently.”

Again read Dr. Helen Webb’s plea for the children and consider in your own mind whether there be any answer to it. “The continuance of any marriage,” she writes, “which is physically and morally injurious to the offspring is a menace to society and calls for greater facility of divorce in all cases. Conventionally it is thought a dreadful thing for children if their parents are divorced and it is regarded as a slur on them and injurious for life, whereas in a great many instances the continuance of a wrong marriage keeps up such a state of friction and discord in the environment of the child in its home and everyday life as will do far more fundamental injury to its character and prospects. The birth of more children is also under such circumstances so highly undesirable that it is for the good of the offspring that there should be a divorce between incompatible parents or diseased parents.”

When the Majority came to report on the pages of clerical evidence that was laid before them we begin to see where the personal bias really lies. It is worth while to set out the Majority finding at length:--

“Having adverted to this difference of ecclesiastical opinion, we think we should point out as a striking feature of the evidence that theological difficulties have weighed little with the great mass of the lay witnesses, and, that among those who feel them there are great differences of opinion. With few exceptions the lay witnesses pass them by, as if they concerned theologians rather than the practical legislator. English laymen seem generally to base their views, not upon ecclesiastical tradition or sentiment, but upon general Christian principles, coupled with common sense and experience of the needs of human life.”

“It has to be remembered that members of Christian Churches are not alone concerned in the matters which form the subject of our inquiry. There are large numbers of persons, subject to the State, who do not belong to any Christian communion, or are only nominally Christians, and are not interested in the theological points upon which opinions have been expressed before us.

“The result is that we are unable to find any general consensus of Christian opinion which would exclude any of the questions stated above from being freely considered. In view of the conflict of opinion which has existed in all ages and in all branches of the Christian Church among scholars and divines equally qualified to judge, and the fact that the State must deal with all its citizens, whether Christian, nominally Christian, or non-Christian, our conclusion is that we must proceed to recommend the Legislature to act upon an unfettered consideration of what is best for the interest of the State, society and morality, and for that of parties to suits and their families.”

We must go back to these brave words when legislation comes along if we have any political sense left in us. The evidence shows that whilst the women witnesses, workers among the poor, were thinking of the misery of women and the sufferings of “little children,” the majority of priests were hampering the Commission with their considered judgments about the Codex Bezæ Cantabrigiensis and the School of Shammai, and the world may be thankful that the majority of the commissioners very wisely listened to the women and refused to have any truck with the theologians.

The Majority Report has indeed only told us what every one who thought about the matter knew before. When the lives of men and women are wrecked we ought to throw them what life-belt we can. For their children--the new citizens of the State--our clear duty is to endeavour to bring them into better and purer surroundings. And to carry out these great purposes it is something that a majority of a Royal Commission has reported to this Christian country that her churches can give us no help or guidance until they cease to wander in the idle groves of dogmatic theology and come out into the streets to talk to us of the Master’s message of love to existing human beings.

Until grievances are put before you, and the private sorrows of your neighbours are revealed, you cannot in the nature of things become aware that reform of the law is necessary. Happily married working women do not trouble their heads about divorce, having many pleasanter things to think about. People in social health do not want law any more than people in physical health want medicine. The best parish priest I ever knew used to snub any member of his flock very cheerfully who came bleating to him about his soul. “A healthy Christian,” he would say, “doesn’t need to talk about his soul any more than a healthy man wants to talk about his liver.”

It is just the same about divorce reform. Divorce Law is in the nature of things ambulance law, salvage law, law to save wrecked lives and ruined homes. In times of domestic peace and joyous family life it would be unhealthy for young husbands and wives to run about, as these clerical ladies expect them to do, shouting for reform of Divorce Law.

But for our rulers and governors, and for those of us who have time and opportunity to devote to the study of social questions, other considerations prevail. We cannot shut our eyes to the degradation and misery of men, women, and children under the present Divorce Laws. We see the rocket go up, we hear the cries of the victims, and we know that our life-boat is water-logged. There are only two courses open to us. We can go down on our knees with the higher clergy and thank Providence for a rotten boat; or we can rouse up the Man in the Street to subscribe for a new one.

How can it be to the best interests of children to live in a household of friction and disorder, which is the natural outcome of married life under such conditions? The everyday life of a child in a home of this kind must do grave injury to its character and prospects in life. Then, too, the State has a right to consider how highly undesirable it must be that further children should be brought into such a life.

The most hopeful way, therefore, of discussing questions of divorce seems to me to bear in mind that the Family is the social unit, that marriage which does not result in happy family life has failed to serve its purpose, and when there is a chance of putting an end to the misery of children, women, or men, and of remedying human mistakes, the State should take the matter in hand and deal with it in a common-sense, business way, as a matter of moral sanitation.

There is no doubt that a real fear exists among good people that divorce made too easy would be an evil thing for the community. This feeling, very right and natural in itself, springs from our sacred regard for family life. It seems to some people logical to say that if it were cheap to obtain divorce, and the grounds for it were multiplied, every one would be rushing for freedom, and homes would be rashly broken up.

I cannot allow this prophecy to make my flesh creep. It is based on the suggestion that there are in the country a large number of husbands and wives who only continue to live together because the law compels them to. Frankly, I do not believe it. I may be an optimist, but I do not foresee husbands and wives taking advantage hastily of a greater freedom in divorce. Married life may not be all that every fancy painted it in the springtime of youth, or all that it should be; but, after all, what is there that is better?

Montaigne told his countrymen that “there is a certain nation where the enclosures of gardens and fields they would preserve are only made of a string of cotton, and so fenced are more firm and secure than by our hedges and ditches.” From this he proceeds to argue that desires are really augmented by difficulties, and that the freedom to do a thing does not by any means encourage folk to do it, but, on the contrary, rather puts them off, as it were. “What you may is displeasing; what is forbidden whets the appetite.” And as an instance of what he means he refers to the Roman laws, which gave the fullest liberty of divorce, yet no married person made use of them for over five hundred years.

I do not fear for a moment the clerical bogey of an England wallowing in vice and immorality owing to extended facilities for divorce. I have investigated too many clerical bogeys, and know the turnips from which the lantern is made, and recognize the vicarage pitchfork underneath the surplice waving in the moonshine. On the other hand, I am ready to back my own prophecy that reasonable divorce reform and cheap tribunals will mean less degradation and misery, purer and better lives and happier homes.

Very interesting evidence was given on this very subject by Fru Ella Ankers, of Norway, where they have an extended divorce system going far beyond anything we propose for our country.

Without setting out the law in detail, it is sufficient to state that if husband and wife choose to separate for three years that becomes a divorce without decree at the end of the period. This, of course, is divorce by consent.

There is one very good point about Norwegian divorce that might well be introduced into this country, and that is that before the Courts will consider certain cases they insist on a mediator seeing the parties and trying to reconcile them. Once, however, it becomes clear that the case is not one for reconciliation, then either with or without a decree divorce comes about very readily.

Now here we have a western European people, not wholly unlike our own, experimenting in divorce in a way that would horrify most of us. One would expect the evidence to show a very large percentage of divorces as against other nations where the rules are stricter. But this is not so at all, and Fru Ella Ankers tells us that the mere fact that divorce is so easily attainable makes the Norwegian husband better mannered, and the Norwegian wife more sweet tempered and more forgiving.

And this I believe to be no fiction. I can well imagine a Norwegian husband hesitating to express his views about the cold mutton taking its third encore when he knows that his good lady may resent his rudeness and get up and leave his table for ever. Also it is conceivable though less probable that a Norwegian wife might hesitate at an unnecessary and extravagant hat if she feared it would frighten her husband out of the house.

Be this as it may, enough has been done in Norway to show us that divorce reform does not mean decadence and race degeneration.

The Law in this matter owes long outstanding debts to Woman, and the community may hope that in the near future Woman will enforce payment. For only through divorce reform can we attain that pure and honest condition of family life which is essential to the progress and happiness of the nation.