The family and its members

by Anna Garlin Spencer

Whatever may be thought by many who view all divorce with horror, there is a tendency within that movement toward free divorce, toward the freeing of the currents of generative life from evil influence, from despotism, from degenerative tendencies, and from the worst forms of social wrong-doing. There is, also, of course, in that movement, a testimony which should make all earnest lovers of their kind learn how to urge socially therapeutic treatment, a testimony to human weakness, to a lack of the sense of responsibility, to a love of personal pleasure at any cost to moral obligation, and to a need for social control of the whole family relation.

The causes, in our country, for which more than 90 per cent, of the divorces are granted, are the serious ones of adultery, cruelty, imprisonment for crime, habitual drunkenness, desertion, and neglect to provide for the family. This indicates that in most cases there has been a failure on the score of basic family requirements from husbands and wives, and from fathers and mothers, before the court was called in to break the legal bond. Does this also indicate that such failure of character has increased among our people to the extent of its increased legal recognition in divorce? We can not think so. There are special reasons why all bonds of intimate association are strained in modern life, with its separate industrial, social, and educational affiliations for each individual. But that all of us are going downward, or most of us, is not a provable contention and should not be an undemonstrated inference.

Dangers of Extreme Individualism in Marriage.—The primary fact is that we have allowed individualism in marriage to go beyond limits which are socially safe, just as in the economic order and in the administration of political affairs, we have supposed that the "let-alone-policy" would work social good. No other civilization has been able to secure successful family life without some support, supervision, control, and aid to the married couple and their children, from without. We cannot return to the collective family of other days. We must learn how to make society in general work toward the ends of stability and social order in the family, as in other social institutions, and by methods that reverence and secure personal freedom and fit well into a democratic state.

Free Love Not Admissible.—Professor Ellwood says that "while material civilization is mainly a control of the food process, moral civilization involves a control of the reproductive process, that is, over the birth and rearing of children." He argues from this that social organization "precludes anything like the toleration of promiscuity or even of free love." Most students of social history will agree with this statement. We may, therefore, say that the attitude of law, of custom, and of social standards, must be that of demanding legalization of permitted sex-relationship, and the effort to make legal sex-relationship permanent where possible without sacrifice of the substance of family life to its outward form.

Must Work Toward Desired Permanency in Marriage.—This means a quite new approach to the problems of marriage and divorce. It means the inauguration of legal and educational mechanisms in the interest of making people want to stay married, rather than toward an effort to make people stay wedded when they wish to separate. In this, more, even than in any other field of social effort, we should take heed to and obey the advice of Dr. Lester Ward "to use attractive rather than compulsory methods of reform."

Needed Changes in Legal and Social Approach to Divorce.—What are the main points of change in our legal and social approach to the divorce situation, which the modern need for social control through democratic measures demands most clearly and strongly? They are, first, a longer period of delay between reception and granting of the request of a man and a woman for a license to marry. Several State legislatures are now considering statutes which require an "interval of three days" between the application for and the granting of marriage licenses. This is certainly a short enough time in which to find out if either of the parties is likely to commit bigamy if the license is granted, if both of the parties are really of adult age claimed, if either of the parties is afflicted with an infectious disease that would make marriage dangerous to the other party, if either of the parties has been a resident of a criminal or pauper institution, if either or both of the parties are competent to financial support of the twain, if there is any "just cause or impediment" against the legal union. We may find it wise to return to the old "three weeks publishing of the banns" in order to know what the state is about in granting and what two people are about in demanding a marriage license. In the second place, there are limits outside of which society should not allow legal marriage to receive its sanction. During the legal interval required there may develop knowledge of facts that make it a social crime for one or the other or both parties to be allowed to start a new family. This is matter for serious and long-continued study, and the experimentation of our different Commonwealths in determining the useful or necessary restrictions upon legal marriage is not without value. The main thing, however, is for society to recognize that there are just restrictions upon marriage and that this is proved by the actual social burden which unfit persons place upon their fellows when marrying and bringing forth after their kind. The third point, which must be emphasized more strongly than has been the case heretofore, is the need of making the state, through its courts, the ally, not the enemy, of marriage permanency. As it is now, the Divorce Court exists to secure divorces. Its very existence invites to its use. The court procedure in all cases of marital unhappiness which has become acute enough for legal freedom to be sought should be a court procedure that aims at arbitration, at "trying again," at winning harmony by just concessions from either or both the parties, a court procedure consciously and definitely set to the task of making more marriages successful even when they have developed difficulty of adjustment, rather than one allowed to act as a means of easy separation of even fickle, selfish, and childish people on grounds of superficial difference.

Prohibition of Paid Attorneys in Divorce.—The absolute abolition of any paid service of any attorney in the interest of getting anyone a divorce, is a primary social demand. The establishment of a "Divorce Proctor" service in a Domestic Relations Court, with sole jurisdiction over applications for divorce, is a second vital social demand. Some form of legal provision which would make judges of a special and honored class the paid representatives of society's demand for marriage to be as permanent as individual justice will allow is essential to any genuine divorce reform. The often highly-feed advocate of personal wish of two dissatisfied people, the agent that deals with divorce problems as a lucrative trade, is one cause of the prevalence of divorce among the idle and pampered rich. Those who have greater social opportunity than they have brains or conscience to use them aright, and who can pay lawyers so extravagantly, give us a heavy total of marital separations and of remarriage of divorced persons in the United States.

Judges, the best and the wisest, must sit on all cases where the breaking up of a family is the issue, and all privately paid attorneys (in other kinds of social arrangement and difficulty also a hindrance rather than an aid to justice) must be banished from every divorce court and from every divorce proceeding, both of the richer and of the poorer classes.

Divorce Proceedings Should be Heard in Secret.—Newspapers should not be tempted or allowed to gain advantage from the weakness, the folly, or the vice of any member of any family which may be revealed in such divorce proceedings. The fact of whether or not a divorce applied for is granted, the fact of whether one or the other party or both have received freedom, the fact of whether one or another was pronounced guilty of treason to the marriage bond—these are all subjects for news. The reasons for these decisions of wise and good judges should not be given to the public in detail. The main objections to the present publicity of divorce proceedings is, first, that publicity is generally in proportion to the wealth of the parties, as is also the prolongation of the proceedings; and second, that such reports are generally of a demoralizing nature for the public to read; and third, and not least, that few if any couples seeking a divorce are without fathers or mothers or relatives, children, or near friends, to whom the public revelation of the marital unhappiness or the personal wrong-doing of the parties involved is a pain and a shame.

Earlier and Better Use of Domestic Relations Court.—Another way by which society should undertake to supply in newer and more democratic forms the supervision, the control, and the support to the individual married couple and their children, which the older collective family organization sought to supply, is an earlier and a better use of the Domestic Relations Court, or of some advisory agency to prevent the breaking up of families. There should be something analogous to the old "family council," some body of advisers well known and well equipped for actual service, to help the bewildered and the unhappy. The religious ministry should be able to supply such help. It often does do so. The circle of friends may sometimes contain those of wisdom and understanding who give needed aid toward a resumption of broken relations on a higher and more enduring plane. There is needed, however, something between the court to which people go for relief from bonds, and the solitary struggle with difficulties before that relief is sought, something which, if related officially to the Domestic Relations Court, would be of a more flexible and private nature than most of its proceedings. We need more an aid to avoidance of marital rocks than a rescue, as from a life-boat, after the shipwreck.