Marriage, As It Was, As It Is, and As It Should Be: A Plea for Reform

by Annie Besant

II. DIVORCE.

Any proposed reforms in the marriage laws of England would be extremely imperfect, unless they dealt with the question of divorce. Marriage differs from all ordinary contracts in the extreme difficulty of dissolving it—a difficulty arising from the ecclesiastical character which has been imposed upon it, and from the fact that it has been looked upon as a religious bond instead of as a civil contract. Until the time of the Reformation, marriage was regarded as a sacrament by all Christian people, and it is so regarded by the majority of them up to the present day. When the Reformers advocated divorce, it was considered as part of their general heresy, and as proof of the immoral tendency of their doctrines. Among Roman Catholics the sacramental—and therefore the indissoluble—character of marriage is still maintained, but among Protestants divorce is admitted, the laws regulating it varying much in different countries.

In England—owing to the extreme conservatism of the English in all domestic matters—the Protestant view of marriage made its way very slowly. Divorce remained within the jurisdiction of ecclesiastical courts, and these granted only divorces a mensâ et thoro in cases where cruelty or adultery was pleaded as rendering conjugal life impossible. These courts never granted divorces a vinculo matrimonii, which permit either—or both—of the divorced persons to contract a fresh marriage, except in cases where the marriage was annulled as having been void from the beginning; they would only grant a separation "from bed and board," and imposed celibacy on the divorced couple until one of them died, and so set the other free. There was indeed a report drawn up by a commission, under the authority of 3 and 4 Edward VI., c. ii., which was intended as a basis for the re-modelling of the marriage laws, but the death of the king prevented the proposed reform; the ecclesiastical courts remained as they were, and absolute divorce was unattainable. Natural impatience of a law which separated unhappy married people only to impose celibacy on them, caused occasional applications to be made to Parliament for relief, and a few marriages were thus dissolved under exceptional circumstances. In 1701, a bill was obtained, enabling a petitioner to re-marry, and in 1798, Lord Loughborough's "Orders" were passed. By these orders, no petition could be presented to the House, unless an official copy of the proceedings, and of a definitive sentence of divorce, a mensâ et thoro, in the ecclesiastical courts, was delivered on oath at the bar of the House at the same time (Broom's "Comm.," vol. iii. p. 396). After explaining the procedure of the ecclesiastical court, Broom goes on: "A definitive sentence of divorce a mensâ et thoro being thus obtained, the petitioner proceeded to lay his case before the House of Lords in accordance with the Standing Orders before adverted to, and, subject to his proving the case, he obtained a bill divorcing him from the bonds of matrimony, and allowing him to marry again. The provisions of the bill, which was very short, were generally these:—1. The marriage was dissolved. 2. The husband was empowered to marry again. 3. He was given the rights of a husband as to any property of an after-taken wife. 4. The divorced wife was deprived of any right she might have as his widow. 5. Her after-acquired property was secured to her as against the husband from whom she was divorced. In the case of the wife obtaining the bill, similar provisions were made in her favour" (p. 398). In 1857, an Act was passed establishing a Court for Divorce and Matrimonial Causes, and thus a great step forward was taken: this court was empowered to grant a judicial separation—equivalent to the old divorce a mensâ et thoro—in cases of cruelty, desertion for two years and upwards, or adultery on the part of the husband; it was further empowered to grant an absolute divorce with right of re-marriage—equivalent to the old divorce a vinculo matrimonii—in cases of adultery on the part of the wife, or of, on the part of the husband, incestuous adultery, or of bigamy with adultery, or of rape, or an unnatural crime, or of adultery coupled with such cruelty as would formerly have entitled her to a divorce a mensâ et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards (Broom, vol. i., p. 542). The other powers held by the court need not now be specially dwelt upon.

The first reform here needed is that husband and wife should be placed on a perfect equality in asking for a divorce: at present if husband and wife be living apart, no amount of adultery on the husband's part can release the wife; if they be living together, a husband may keep as many mistresses as he will, and, provided that he carefully avoid any roughness which can be construed into legal cruelty, he is perfectly safe from any suit for dissolution of marriage. Adultery alone, when committed by the husband, is not ground for a dissolution of marriage; it must be coupled with some additional offence before the wife can obtain her freedom. But the husband can obtain a dissolution of marriage for adultery committed by the wife, and he can further obtain money damages from the co-respondent, as a solatium to his wounded feelings. Divorce should be absolutely equal as between husband and wife: adultery on either side should be sufficient, and if it be thought necessary to join a male co-respondent when the husband is the injured party, then it should also be necessary to join a female co-respondent where the wife brings the suit. The principle, then, which should be laid down as governing all cases of divorce, is that no difference should be made in favour of either side; whatever is sufficient to break the marriage in the one case should be sufficient to break it in the other.

Next, the system of judicial separation should be entirely swept away. Wherever divorce is granted at all, the divorce should be absolute. No useful end is gained by divorcing people practically and regarding them as married legally. A technical tie is kept up, which retains on the wife the mass of disabilities which flow from marriage, while depriving her of all the privileges, and which widows both man and woman, exiling them from home-life and debarring them from love. Judicial separation is a direct incentive to licentiousness and secret sexual intercourse; the partially divorced husband, refused any recognised companion, either indulges in promiscuous lust, to the ruin of his body and mind, or privately lives with some woman whom the law forbids him to marry and whom he is ashamed to openly acknowledge. Meanwhile the semi-divorced wife can obtain no relief, and is compelled to live on, without the freedom of the spinster or the widow, or the social consideration of the married woman. She can only obtain freedom by committing what the law and society brand as adultery; if she has any scruples on this head, she must remain alone, unloved and without home, living a sad, solitary life until death, more merciful than the law, sets her free.

It is hard to see what object there can be in separating a married couple, in breaking up the home, dividing the children, and yet maintaining the fact of marriage just so far as shall prevent the separated couple from forming new ties; the position of those who regard divorce as altogether sinful, is intelligible, however mistaken; but the position of those who advocate divorce, but object to the divorced couple having the right of contracting a new marriage, is wholly incomprehensible. No one profits by such divorce, while the separated couple are left in a dubious and most unsatisfactory condition; they are neither married nor unmarried; they can never shake themselves free from the links of the broken chain; they carry about with them the perpetual mark of their misfortune, and can never escape from the blunder committed in their youth. They would be the happier, and society would be the healthier, if the divorce of life and of interests were also a divorce which should set them free to seek happiness, if they will, in other unions—free technically as well as really, free in law as well as in fact.

If it be admitted that all divorce should be absolute, the question arises: What should be the ground of divorce? First, adultery, because breach of faith on either side should void the contract which implies loyalty to each other; the legal costs of both should fall on the breaker of the contract, but no damages should be recoverable against a third party. Next, cruelty, because where the weaker party suffers from the abuse of power of the stronger, there the law should, when appealed to, step in to annul the contract, which is thus a source of injury to one of the contracting parties; if a man be brought up before the magistrate charged with wife-beating or violence of any kind towards his wife, and be convicted and sentenced, the Divorce Court should, on the demand of the wife, the record being submitted to it, pronounce a sentence of divorce; in the rare case of violence committed by a wife on her husband, the same result should accrue; the custody of the children should be awarded to the innocent party, since neither a man nor a woman convicted of doing bodily harm to another is fit to be trusted with the guardianship of a child. * The next distinct ground of divorce should be habitual drunkenness; drunkenness causes misery to the sober partner, and is ruinous in its effect, both on the physique and on the character of the children proceeding from the marriage. Here, of course, the custody of the children should be committed entirely to the innocent parent.

* Since these lines were published in the National Reformer,
a clause has been inserted in a bill now before Parliament,
empowering magistrates to grant an order of separation to a
wife? if it is proved that she has been cruelly ill-used by
her husband, and further compelling the husband, in such a
case, to contribute a weekly sum towards her maintenance.
This will be a great improvement on the present state of
things, but absolute divorce would be better than mere
separation.

At present, the usual unfairness presides over the arrangements as to access to the children by the parents: "In the case of a mother who is proved guilty of adultery, she is usually debarred from such access, though it has not been the practice to treat the offending father with the same rigour" (Broom's "Comm.," vol. iii., p. 404). In all cases of divorce the interests of the children should be carefully guarded; both parents should be compelled to contribute to their support, whether the guardianship be confided to the father or to the mother.