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CHURCH QUARTERLY REVIEW
No. CXCI.-APRIL 1923.
ART. I.-THE LAW OF DIVORCE.
It will not be within the scope of this article to deal with any theological or moral questions. It is written in order to convey information as to the existing law and its practical operation, with an historical retrospect and some examination of the social prospect if further changes were to be made.
Throughout Western Europe for a long period, beginning with at latest the Eleventh century, and reaching onwards to the Reformation for some countries and to the Eighteenth or Nineteenth centuries for others, the law determining the validity of marriages and the rights and remedies of married spouses was administered by the Courts of the Church, primarily by the Bishops, acting as time went on through their Officials, Vicars General and Chancellors, with an appeal from the Bishops' Courts to higher Ecclesiastical Tribunals.
By the law of the Western Church, these tribunals might, when two persons were apparently living together as man and wife but had not been lawfully married, either because there was a personal impediment to their marriage, or because the marriage was not complete in form, pronounce a sentence of nullity of marriage which was often called a divorce a vinculo, that is a separation from the bond of marriage.
The three so-called divorces of Henry VIII were all
VOL. XCVI.-NO. CXCI.
decrees of nullity. Katharine of Aragon was divorced because it was thought so contrary to the Christian law that a man should marry his brother's widow that even the Papal dispensation could not cure it. This remained part of the law of England till the year 1920. The marriage of Anne Boleyn, though there was a charge against her for infidelity, was not dissolved on that ground. It was declared null from the beginning, probably on the monstrous ground that Henry VIII had had previous unlawful relations with her elder sister, Mary. Anne of Cleves was got rid of on the ground of a pre-contract with the Marquis of Lorraine, and also on the ground which is so justly censured by Bishop Burnet in his History of the Reformation, that the King had never really consented to the marriage.
The Church tribunals might also supply relief to married persons, ordering restitution of conjugal rights, or contrariwise in the cases of adultery and cruelty, giving to the applicant a decree of divorce a mensa et thoro—that is, a separation from a common table and a common bedwith the additional remedy, if the wife were the applicant, of a grant to her of maintenance at her husband's expense, called alimony.
Neither of these divorces, it will be seen, was the divorce of the present day. Decrees of nullity, in the now rather rare cases where they are applicable, are now pronounced in England by the High Court of Justice, and in foreign countries by similar courts. They are not usually called divorces.
The divorce a mensa et thoro which was, after all, not final, because the parties might at any moment be reconciled and come together again without any formal act, and which therefore did not allow of re-marriage, is that which is represented nowadays in England by a judicial separation, and differs from the divorce of modern days which annuls the marriage and allows re-marriage.
The tribunals of the Western Church therefore never granted the modern divorce. It is true, nevertheless, that the rigour of their law was tempered in practice by
a large extension of the causes of nullity. The Canon Law recognized a number of impediments to marriage, the most important for this purpose being the relationship of the parties, a previous contract of marriage, or submission by one of the parties to the ceremony under compulsion and without sufficiently free consent. As to the prohibited degrees, these extended to second cousins and also to many cases of affinity; and, as affinity could be contracted by illegitimate union as well as by legitimate marriage, (this probably as already stated forming the ground for Anne Boleyn's divorce,) and as there was also what was called 'spiritual affinity,' the relationship of being gossips' or common god-parents, and as it was not infrequently the custom for the parents or guardians of young people to make them enter into contracts of marriage not to be consummated for years, and as, lastly, in rough times the question of consent or compulsion for the woman not infrequently arose, it was not difficult when two spouses got tired of one another to proceed, not by way of dissolving a valid marriage, but by way of declaring that though the parties had lived together as man and wife and had even gone through a marriage ceremony, they had never been lawfully married. As further, in cases where the form of marriage had been gone through, a subsequent declaration of nullity did not, according to the Canon Law, make the children of such a putative marriage illegitimate, it was all the easier to get a decree of nullity or divorce a vinculo.
One of the first results of the Reformation was an uprising of the demand for divorce in the modern sense; and it soon established itself in Protestant States on the Continent. In England, in the reign of Edward VI, the Marquis of Northampton obtained a divorce a mensa et thoro for his wife's infidelity, and having then assumed to marry again, obtained a private Act of Parliament declaring his marriage with his second wife valid; but this Act was repealed in the reign of Queen Mary.
Afterwards, in the reign of Elizabeth, it was decided that the old law of the West remained, and that in the
case of a valid marriage there could be no divorce in our modern sense, enabling the parties to marry again.
The Canons of 1603 gave force to this rule in a somewhat singular manner, providing by Canons 107 and 108 as follows:
'In all sentences pronounced only for divorce and separation a thoro et mensa, there shall be a caution and restraint inserted in the act of the said sentence, that the parties so separated shall live chastely and continently; neither shall they, during each other's life, contract matrimony with any other person. And, for the better observing of this last clause, the said sentence of divorce shall not be pronounced, until the party or parties requiring the same have given good and sufficient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition.
And if any judge, giving sentence of divorce or separation, shall not fully keep and observe the premisses, he shall be by the archbishop of the province or by the bishop of the diocese, suspended from the exercise of his office for the space of a whole year; and the sentence of separation so given contrary to the form aforesaid, shall be held void to all intents and purposes of the law, as if it had not at all been given or pronounced.'
In the reign of Charles II there began a practice of allowing a husband who had obtained a divorce a mensa et thoro by reason of his wife's infidelity to obtain a private Act of Parliament permitting him to re-marry. The first case was that of Lord Roos in 1669. There were not more than five such cases before the accession of the House of Hanover. No woman was allowed such an Act till the case occurred of Mrs. Addison in 1801, when her complaint was that her husband was guilty of incestuous adultery, as he was co-habiting with her sister. The few cases where women got a private Act were all cases where the adultery was aggravated in some similar way.
Notwithstanding these 'privilegia,' the general law of the Church and realm remained in theory intact. To use the language of Sir William Scott, afterwards Lord Stowell, in Proctor v. Proctor,1 decided in 1819, 'the doctrine of
1 Haggard's Consistory Reports, ii, p. 301.