There cannot be the slightest doubt that the difficulty, the confusion, the inconsistency, and the flagrant indecency which surround divorce and the methods of securing it are due solely and entirely to the subtle persistence of traditions based, on the one hand, on the Canon law doctrines of the indissolubility of marriage and the sin of sexual intercourse outside marriage, and, on the other hand, on the primitive idea of marriage as a contract which economically subordinates the wife to the husband and renders her person, or at all events her guardianship, his property. It is only when we realize how deeply these traditions have become embedded in the religious, legal, social and sentimental life of Europe that we can understand how it is that barbaric notions of marriage and divorce can to-day subsist in a stage of civilization which has, in many respects, advanced beyond such notions.
The Canon law conception of the abstract religious sanctity of matrimony, when transferred to the moral sphere, makes a breach of the marriage relationship seem a public wrong; the conception of the contractive subordination of the wife makes such a breach on her part, and even, by transference of ideas, on his part, seem a private wrong. These two ideas of wrong incoherently flourish side by side in the vulgar mind, even to-day.
The economic subordination of the wife as a species of property significantly comes into view when we find that a husband can claim, and often secure, large sums of money from the man who sexually approaches his property, by such trespass damaging it in its master's eyes.[[339]] To a psychologist it would be obvious that a husband who has lacked the skill so to gain and to hold his wife's love and respect that it is not perfectly easy and natural to her to reject the advances of any other man owes at least as much damages to her as she or her partner owes to him; while if the failure is really on her side, if she is so incapable of responding to love and trust and so easy a prey to an outsider, then surely the husband, far from wishing for any money compensation, should consider himself more than fully compensated by being delivered from the necessity of supporting such a woman. In the absence of any false traditions that would be obvious. It might not, indeed, be unreasonable that a husband should pay heavily in order to free himself from a wife whom, evidently, he has made a serious mistake in choosing. But to ordain that a man should actually be indemnified because he has shown himself incapable of winning a woman's love is an idea that could not occur in a civilized society that was not twisted by inherited prejudice.[[340]] Yet as matters are to-day there are civilized countries in which it is legally possible for a husband to enter a prayer for damages against his wife's paramour in combination with either a petition for judicial separation or for dissolution of wedlock. In this way adultery is not a crime but a private injury.[[341]]
At the same time, however, the influence of Canon law comes inconsistently to the surface and asserts that a breach of matrimony is a public wrong, a sin transformed by the State into something almost or quite like a crime. This is clearly indicated by the fact that in some countries the adulterer is liable to imprisonment, a liability scarcely nowadays carried into practice. But exactly the same idea is beautifully illustrated by the doctrine of "collusion," which, in theory, is still strictly observed in many countries. According to the doctrine of "collusion" the conditions necessary to make the divorce possible must on no account be secured by mutual agreement. In practice it is impossible to prevent more or less collusion, but if proved in court it constitutes an absolute impediment to the granting of a divorce, however just and imperative the demand for divorce may be.
The English Divorce Act of 1857 refused divorce when there was collusion, as well as when there was any countercharge against the petitioner, and the Matrimonial Causes Act of 1860 provided the machinery for guaranteeing these bars to divorce. This question of collusion is discussed by G. P. Bishop (op. cit., vol. ii, Ch. IX). "However just a cause may be," Bishop remarks, "if parties collude in its management, so that in real fact both parties are plaintiffs, while by the record the one appears as plaintiff and the other as defendant, it cannot go forward. All conduct of this sort, disturbing to the course of justice, falls within the general idea of fraud on the court. Such is the doctrine in principle everywhere."
It is quite evident that from the social or the moral point of view, it is best that when a husband and wife can no longer live together, they should part amicably, and in harmonious agreement effect all the arrangements rendered necessary by their separation. The law ridiculously forbids them to do so, and declares that they must not part at all unless they are willing to part as enemies. In order to reach a still lower depth of absurdity and immorality the law goes on to say that if as a matter of fact they have succeeded in becoming enemies to each other to such an extent that each has wrongs to plead against the other party they cannot be divorced at all![[342]] That is to say that when a married couple have reached a degree of separation which makes it imperatively necessary, not merely in their own interests but in the moral interests of society, that they should be separated and their relations to other parties concerned regularized, then they must on no account be separated.
It is clear how these provisions of the law are totally opposed to the demands of reason and morality. Yet at the same time it is equally clear how no efforts of the lawyers, however skilful or humane those efforts may be, can bring the present law into harmony with the demands of modern civilization. It is not the lawyers who are at fault; they have done their best, and, in England, it is entirely owing to the skilful and cautious way in which the judges have so far as possible pressed the law into harmony with modern needs, that our antiquated divorce laws have survived at all. It is the system which is wrong. That system is the illegitimate outgrowth of the Canon law which grew up around conceptions long since dead. It involves the placing of the person who imperils the theoretical indissolubility of the matrimonial bond in the position of a criminal, now that he can no longer be publicly condemned as a sinner. To aid and abet that criminal is itself an offence, and the aider and abettor of the criminal must, therefore, be inconsequently punished by the curious method of refraining from punishing the criminal. We do not openly assert that the defendant in a divorce case is a criminal; that would be to render the absurdity of it too obvious, and, moreover, would be hardly consistent with the permission to claim damages which is based on a different idea. We hover uncertainly between two conceptions of divorce, both of them bad, each inconsistent with the other, and neither of them capable of being pushed to its logical conclusions.
The result is that if a perfectly virtuous married couple comes forward to claim divorce, they are told that it is out of the question, for in such a case there must be a "defendant." They are to be punished for their virtue. If each commits adultery and they again come forward to claim divorce, they are told that it is still out of the question, for there must be a "plaintiff." Before they were punished for their virtue; now they are to be punished in exactly the same way for their lack of it. The couple must humor the law by adopting a course of action which may be utterly repugnant to both. If only the wife alone will commit adultery, if only the husband will commit adultery and also inflict some act of cruelty upon his wife, if the innocent party will descend to the degradation of employing detectives and hunting up witnesses, the law is at their feet and hastens to accord to both parties the permission to remarry. Provided, of course, that the parties have arranged this without "collusion." That is to say that our law, with its ecclesiastical traditions behind it, says to the wife: Be a sinner, or to the husband: Be a sinner and a criminal—then we will do all you wish. The law puts a premium on sin and on crime. In order to pile absurdity on absurdity it claims that this is done in the cause of "public morality." To those who accept this point of view it seems that the sweeping away of divorce laws would undermine the bases of morality. Yet there can be little doubt that the sooner such "morality" is undermined, and indeed utterly destroyed, the better it will be for true morality.
There is an influential movement in England for the reform of divorce, on the grounds that the present law is unjust, illogical, and immoral, represented by the Divorce Law Reform Union. Even the former president of the Divorce Court, Lord Gorell, declared from the bench in 1906 that the English law produces deplorable results, and is "full of inconsistencies, anomalies and inequalities, amounting almost to absurdities." The points in the law which have aroused most protest, as being most behind the law of other nations, are the great expense of divorce, the inequality of the sexes, the failure to grant divorces for desertion and in cases of hopeless insanity, and the failure of separation orders to enable the separated parties to marry again. Separation orders are granted by magistrates for cruelty, adultery, and desertion. This "separation" is really the direct descendant of the Canon law divorce a mensa et thoro, and the inability to marry which it involves is merely a survival of the Canon law tradition. At the present time magistrates—exercising their discretion, it is admitted, in a careful and prudent manner—issue some 7,000 separation orders annually, so that every year the population is increased by 14,000 individuals mostly in the age of sexual vigor, and some little more than children, who are forbidden by law to form legal marriages. They contribute powerfully to the great forward movement which, as was shown in the previous chapter, marks the morality of our age. But it is highly undesirable that free marriages should be formed, helplessly, by couples who have no choice in the matter, for it is unlikely that under such circumstances any high level of personal responsibility can be reached. The matter could be easily remedied by dropping altogether a Canon law tradition which no longer has any vitality or meaning, and giving to the magistrate's separation order the force of a decree of divorce.
New Zealand and the Australian colonies, led by Victoria in 1889, have passed divorce laws which, while more or less framed on the English model, represent a distinct advance. Thus in New Zealand the grounds for divorce are adultery on either side, wilful desertion, habitual drunkenness, and conviction to imprisonment for a term of years.