Chapter 6: Divorce
In leaving the moorland of general principles for the fields of particular problems it will be convenient to group sex natures under three heads: (1) the normal or hetero-sexual, (2) the invert or homo-sexual, and (3) the neuter or sexless. It is necessary only to add that it will not be possible to deal in more than the merest outline with any of these important questions.
The most prominent of the problems concerned with the normal group is that of divorce. The problem arises because on the one hand there is a sense that marriage ought to be a permanent state, while on the other, there are many human exigences which go to break up particular marriages. Separation, without permission to re-marry, is of course an admitted remedy. But the question then arises whether parties so separated will continue to live as celibates; and as it appears certain that the vast majority will not, we have to ask whether it is better to legalise the fresh unions which are formed, or to permit adultery.
Every modern State has wrestled with this problem, and for the most part ineffectually. Where there is no divorce, as in England before 1857,[10] or among the poorer classes who cannot afford divorce, irregular unions and prostitution undoubtedly flourish. Where a compromise is introduced, the permanence of marriage, and therefore of the home, becomes correspondingly impaired, while there are left a number of unhappy cases for which divorce is not allowed.[11] The English civil law is particularly unhappy in its compromise. It is based on the Protestant interpretation of the passage in St. Matthew already mentioned, namely that divorce is permissible where adultery has occurred, and it goes on to make it easier for the husband to sue for divorce when the wife has committed adultery than for the wife to do so in the reverse circumstances. Hence it places a premium on adultery, and exaggerates its importance as regards other sins. It deliberately incites an unhappy wife to commit adultery in order to obtain relief—she can usually evade the vigilance of the King’s Proctor—and it singles out adultery as a worse sin than, let us say, cruelty or habitual drunkenness, for which divorce is not at present obtainable. In fact it is difficult to find any logical or moral defence for the English law as it stands.
Let us first see how far the popular critics of the Catholic doctrine of indissoluble marriage are wrong. They regard marriage as simply a contract, from which it follows that divorce should be obtained by mutual consent, or even on the application of one of the parties. But this ignores, among other things, one vital natural law. Marriage begets parenthood, and between the parents of the same child there is a definite and permanent relationship. No Act of Parliament can make men and women cease to be the parents of their own children. Nor, even in childless marriages, is the sense of permanence an artificial convention which can be abolished by the decree of a court. The deeper the love, the more permanent must its nature tend to be. Love is not a contract; it is a spiritual bond.
It is impossible, I contend, to think of a normally healthy marriage without realizing that both the man and woman naturally enter into it with the assumption that it will be a permanent relationship. The possibility of a family, the break-up of the maiden life—even the furnishing of a home, is evidence of a strong probability in the minds of the parties that the step which is being taken is something more than a temporary contract. Indeed, the marriage is only temporary if unhappiness arises. Men and women marry because they want to enter into as permanent a relationship as possible; they enter into it because, as they say, they wish to “settle down.” The natural desire of man is that marriage should be permanent.
A reversion to free love would be more than the undoing of the evolution from animal to man. It would completely change the basis of human society. And in proportion as any divorce law encourages the conception of a temporary contract this dangerous instability of home-life is threatened. Americans sometimes describe their own laws as approaching the “ideal.” “The question will soon be,” wrote a journalist describing the American “smart set,” “who is to be your husband next year?”—or, “Has your last season’s wife re-married yet?” This is of course an exaggeration; but it is a warning as to logical developments.
In fact, divorce tends to create itself. Divorce is only applied for where the marriage is unhappy. A fair proportion of unhappy marriages arise because they have been hastily entered into; with due inquiry many of them could have been prevented. But the easier divorce is to obtain, the more incentive will be given to enter into these hasty marriages—the type of union which so often gives rise to divorce.