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indissolubility remains in full force. The very practice of the Legislature in granting, by special acts, particular divorces in particular cases, affirms the indissolubility as existing in the general law, and to be maintained by the Courts in their dispensations of justice.'
It has long been a Standing Order of the House of Lords that no Bill for the annulling of marriage should be presented which had not a clause inserted in it prohibiting marriage between the guilty parties. But though in obedience to Standing Orders, this clause was inserted, and still is now, in cases where private Acts are resorted to, it has been for a long time the practice for some peer to move to strike it out, and for it then to be omitted.
In the year 1857 Parliament operated a considerable revolution. The jurisdiction of the Church Courts in marriage cases and in testamentary cases was taken away and conferred upon secular courts. There was a Court of Probate and a Matrimonial Court, and the Judge of the Court of Probate was made Judge of the Matrimonial Court. Divorces a mensa et thoro were turned into judicial separations to be granted for the same causes as of old, and in addition the husband was enabled to procure a divorce a vinculo for his wife's infidelity instead of having to have recourse to a private Act of Parliament, and the wife was granted the same right for certain aggravated cases of adultery, or for adultery plus cruelty or plus desertion for the space of two years.
The Act and rules made under it have worked out a whole system of procedure. Under this system orders may be made pending suit, giving custody of the children. to one or other of the parties, providing for access by the other party, providing for the maintenance and education of the children, and if the wife is the suitor, giving her the right of alimony pendente lite and causing her husband to give security for her costs, which he will in the ordinary case have ultimately to pay. If the wife obtains a decree for judicial separation she gets permanent alimony; if she gets a decree for divorce she gets either a lump sum or
an annuity, as the Court may fix, for what is called her maintenance.
A husband suing for a divorce is ordered to make the alleged adulterer co-respondent, unless he can give some valid reason to the contrary, and a co-respondent may be ordered to pay damages to the husband.
Though practice has developed this jurisdiction in a way and to an extent never expected, the only statutory change of substance made since 1857 has been with regard to proceedings for restitution of conjugal rights. It is now no longer the practice to make the direct and drastic order that used to be made by the Ecclesiastical Courts, but as an incident of the decree, it is provided that a refusal to return to the common life shall at once constitute desertion, so as to give a wife who can prove her husband's infidelity a supplemental fact to entitle her to a divorce.
It cannot be expected that this article should deal with all the questions of divorce procedure, but it is desirable to state that the defences to a suit, besides denial of the charge imputed, may include the tu quoque, i.e. that some matrimonial offence has been committed by the party suing, of sufficient gravity to disqualify him or her from obtaining relief; or condonation, connivance or collusion; and further, that while a decree for judicial separation is absolute at once, a decree of divorce is in the first instance a decree nisi, that is only to operate unless within a fixed period the King's Proctor or indeed any member of the public should shew cause why the decree should not be made absolute by reason of material facts not having been made known to the Court. It is rare that any member of the public, other than the King's Proctor, takes this step, though it is theoretically open to anyone. The idea of putting the King's Proctor in this position is probably derived from the practice of some of the foreign ecclesiastical Courts where there used to be an officer called the defensor matrimonii. To the writer's knowledge he used to exist in Austria.
A consequence of a divorce which is not a consequence of a judicial separation is that the Court may vary the
marriage settlement, and may make alterations for the benefit of the children or the wife, and this even if there are no children. Contrariwise, where there is a guilty wife, any property to which she is entitled in possession. or reversion may be settled upon the husband or children of the marriage. This does not extend to separate estate held without power of anticipation.
It is understood that some women desire that the power of varying settlements should be extended to cases of judicial separation. The only objection to this would seem to be that, as such separations may always come to an end, there would be a difficulty in restoring the property to its former position if the parties became reconciled.
One of the great causes of the increase in the number of divorces has been that a recent Act making it easier for persons who have no means to get leave to sue in forma pauperis has been extended to divorce proceedings; and quite latterly, under rules of Court, divorce cases may be tried at certain Assize Towns by the judges on circuit.
It perhaps should have been stated that since the Judicature Act, 1875, the Court for Divorce and Matrimonial cases has become merged in the High Court of Justice, where it reappears as a division of the Court in very odd company. To explain, as the writer has often had to do to foreigners, how there came to be one division of the High Court of Justice to which Probate, Matrimonial and Admiralty cases are assigned, it is necessary to make a considerable draft on the hearer's patience while the history of English jurisprudence is traced back to the reign of Edward I. But now that it has become a division of the High Court of Justice, while certain judges are specially told off for it, every Judge of the High Court is competent to sit.
Side by side with the jurisdiction of the High Court in divorce, a form of summary relief in certain cases has been granted to wives alone. Originally under an Act of the year 1878 the relief which could be given by a Bench of Magistrates was conditional upon and given as a consequence of a conviction for some aggravated assault by
the husband upon his wife; but under the present Act, passed in 1895, with a certain augmentation in 1902, the magistrates have jurisdiction to grant relief where the husband has been convicted of a serious assault upon his wife or where she has been deserted, or where he has been guilty of persistent cruelty or of wilful neglect to provide maintenance for her or her young children, and by such cruelty or neglect has caused her to leave him, or where he is an habitual drunkard. The relief which the Bench may grant is a provision that the wife be no longer bound to co-habit, which is to have while it is in force the same effect as a judicial separation for cruelty, a grant of the custody of the children to the applicant, and the order of a payment of such a weekly sum, not exceeding 21., as the Court, having regard to the means of the husband and wife, may consider reasonable, and for payment of the costs of the application. In the one case of habitual drunkenness this relief is open to the man as well as to the woman.
It is understood that some women and some social workers think that the requirement in cases where there has been no direct aggravated assault or absolute desertion but the case is rested on general cruelty or neglect, that the wife should be bound to have left the matrimonial home before she can complain, is unreasonable. If this case be established, a short Act might be passed, eliminating that condition.
The progress of the law in Ireland has been up to a point the same as in England. Jurisdiction was taken from the Church Courts and given to a Civil Matrimonial Court, now merged in the High Court of Justice, and judicial separation was substituted for divorce a mensa et. thoro. But in deference to the feelings of the majority of the Irish population, no provision was made for divorce, in our sense of the word, allowing re-marriage. In consequence when an Irish husband or wife has wanted a divorce, he or she has petitioned Parliament and obtained a private Act like the Divorce Acts in England before 1857. The same rules have been applied to these Acts as to the old English Acts, a clause has always been put in according
to the Standing Orders forbidding the marriage of the guilty parties, and it has been regularly struck out at a later stage. There have latterly been one or two such Acts every year.
What will happen under the new constitution of the Irish Free State has yet to be seen. It may adopt a general divorce law, it may pass private Divorce Acts, or it may refuse to pass them altogether. In that case Southern Irish people who are not Roman Catholics will have to be content without the liberty of re-marriage, for it is hardly to be supposed that an over-riding private Act will be passed by the Imperial legislature.
It may be of some interest to note in this connexion that in the Provinces of Quebec, Ontario and Manitoba there is no general divorce law, but private Divorce Acts are from time to time passed.1
In Scotland with an Established Presbyterian Church, the Western Canon Law has naturally been a good deal changed. Divorce with liberty of re-marriage is granted to either party for adultery or for desertion for a considerable period, but not for cruelty. Divorce cases are tried before the Court of Session in Edinburgh. The writer in conversing with a Scottish Judge wondered how people living in the Islands or extreme Highlands could afford to bring themselves and their witnesses to Edinburgh, but was told that the consideration was immaterial as practically no cases for divorce came from the people in those quarters.
When the Act of 1857 was passed, those who promoted it reckoned upon quite a small number of divorce cases occurring every year. They expected a single Judge to do all the matrimonial work and the testamentary work as well, and they thought it possible that upon the next vacancy occurring in the Admiralty Court he might also add that work, besides being a member of the Judicial
1 Report of Divorce Commission, paragraph 32. There is a special treatise on The Practice of the Parliament of Canada upon Bills of Divorce, written by Mr. J. A. Gemmill and published at Toronto in 1889. The author, a Canadian lawyer, gives much commendation to this form of procedure.