It is remarkable that desertion by either party to a marriage, except as giving rise to a suit for restitution, was not treated as an offence by canon law in England. It formed no ground for a suit for divorce, and constituted no answer to such a suit by way of recrimination. It might indeed deprive a husband of his remedy if it amounted to connivance, or perhaps even if it amounted only to culpable neglect.
The canon law, as administered in England, has kept clear the logical distinction which exists between dissolving a marriage and declaring it null and void. The result has been that, in England at least, the two proceedings have never been allowed to pass into one another, and a complete divorce has not been granted on pretence of a cause really one for declaring the marriage void ab initio. But for certain causes the courts were prepared to declare a marriage null and void on the suit of either party. There is, indeed, a distinction to be drawn between a marriage void or only voidable, though in both cases it became the subject of a similar declaration. It was void in the cases of incapacity of the parties to contract it, arising from want of proper age, or consanguinity, or from a previous marriage, or from absence of consent, a state of things which would arise if the marriage were compelled by force or induced by fraud as to the nature of the contract entered into or the personality of the parties. It is to be remarked that, in England at least, the idea of fraud as connected with the solemnization of marriage has been kept within these narrow limits. Fraud of a different kind, such as deception as to the property or position of the husband or wife, or antecedent impurity of the wife, even if resulting in a concealed pregnancy, has not in England (though the last-mentioned cause has in other countries) been held a ground for the vitiation of a marriage contract. A marriage was voidable, and could be declared void, on the ground of physical incapacity of either spouse, the absence of intercourse between the parties after a sufficient period of opportunity being almost, if not quite, conclusive on this subject.
With regard to one cause of nullity the legislation interfered from consideration, it is said, of a case of special hardship. Before the Marriage Act of 1835 marriages within the prohibited degrees of consanguinity and affinity were only voidable by a decree of the court, and remained valid unless challenged during the lifetime of both the parties. But this act, while providing that no previous marriage between persons within the prohibited degrees should be annulled by a decree of the ecclesiastical court pronounced in a suit depending at the time of the passing of the act, went on to render all such marriages thereafter contracted in England “absolutely null and void to all intents and purposes whatever.”
Another suit was allowed by the ecclesiastical courts which should be mentioned, although its bearing on divorce is indirect. This was the suit for jactitation of marriage, which in the case of any person falsely asserting his or her marriage to another, allowed such person to be put to perpetual silence by an order of the court. This suit, which has been of rare occurrence (though there was an instance, Thompson v. Rourke, in 1892), does not appear to have been used for the purpose of determining the validity of a marriage. The legislature, has, however, in the Legitimacy Declaration Act of 1858, provided a ready means by which the validity of marriages and the legitimacy of children can be determined, and the procedure provided has repeatedly been utilised.
It should be added, as a matter closely akin to the proceedings in the ecclesiastical courts, that the common law took cognizance of one phase of matrimonial relations by allowing an action by the husband against a paramour, known as an action for criminal conversation. In such an action a husband could recover damages estimated according to the loss he was supposed to have sustained by the seduction and loss of his wife, the punishment of the seducer not being altogether excluded from consideration. Although this action was not unfrequently (and indeed, for the purposes of a divorce, necessarily) brought, it was one which naturally was regarded with disfavour.
Effect of the Reformation.—Great as was the indirect effect of the Reformation upon the law of divorce in England, the direct effect was small. It might, indeed, have been supposed that the disappearance of the sacramental idea of marriage entertained by the Roman Church would have ushered in the greater freedom of divorce which had been associated with marriage regarded as a civil contract. And to some extent this was the case. It was for some time supposed that the sentences of divorce pronounced by the ecclesiastical courts acquired the effect of allowing remarriage, and such divorces were in some cases granted. In Lord Northampton’s case in the reign of Edward VI. the delegates pronounced in favour of a second marriage after a divorce a mensa et thoro. It was, however, finally decided in Foljambe’s case, in the 44th year of Elizabeth, that a marriage validly contracted could not be dissolved for any cause. But the growing sense of the right to a complete divorce for adequate cause, when no longer any religious law to the contrary could be validly asserted, in time compelled the discovery of a remedy. The commission appointed by Henry VIII. and Edward VI. to reform the ecclesiastical law drew up the elaborate report known as the Reformatio Legum, and in this they recommended that divorces a mensa et thoro should be abolished, and in their place complete divorce allowed for the causes of adultery, desertion and cruelty. These proposals, however, never became law. In 1669 a private act of parliament was granted in the case of Lord de Roos, and this was followed by another in the case of the duke of Norfolk in 1692. Such acts were, however, rare until the accession of the House of Hanover, only five acts passing before that period. Afterwards their number considerably increased. Between 1715 and 1775 there were sixty such acts, in the next twenty-five years there were seventy-four, and between 1800 and 1850 there were ninety. In 1829 alone there were seven, and in 1830 nine.
The jurisdiction thus assumed by parliament to grant absolute divorces was exercised with great care. The case was fully investigated before a committee of the House of Lords, and not only was the substance of justice so secured, but the House of Lords further required that application to parliament should be preceded by a successful suit in the ecclesiastical courts resulting in a decree of divorce a mensa et thoro, and in the case of a husband being the applicant, a successful action at common law and the recovery of damages against the paramour. In this way, and also, if needful, on its own initiative, the House of Lords provided that there should be no connivance or collusion. Care was also taken that a proper allowance was secured to the wife in cases in which she was not the offending party. This procedure is still pursued in the case of Irish divorces.
It is obvious, however, that the necessity for costly proceedings before the Houses of Parliament imposed great hardship on the mass of the population, and there can be little doubt that this hardship was deeply felt. Repeated proposals were made to parliament with a view to reform of the law, and more than one commission reported on the subject. It is said that the final impetus was given by an address to a prisoner by Mr Justice Maule. The prisoner’s wife had deserted him with her paramour, and he married again during her lifetime. He was indicted for bigamy, and convicted, and Mr Justice Maule sentenced him in the following words:—“Prisoner at the bar: You have been convicted of the offence of bigamy, that is to say, of marrying a woman while you had a wife still alive, though it is true she has deserted you and is living in adultery with another man. You have, therefore, committed a crime against the laws of your country, and you have also acted under a very serious misapprehension of the course which you ought to have pursued. You should have gone to the ecclesiastical court and there obtained against your wife a decree a mensa et thoro. You should then have brought an action in the courts of common law and recovered, as no doubt you would have recovered, damages against your wife’s paramour. Armed with these decrees, you should have approached the legislature and obtained an act of parliament which would have rendered you free and legally competent to marry the person whom you have taken on yourself to marry with no such sanction. It is quite true that these proceedings would have cost you many hundreds of pounds, whereas you probably have not as many pence. But the law knows no distinction between rich and poor. The sentence of the court upon you, therefore, is that you be imprisoned for one day, which period has already been exceeded, as you have been in custody since the commencement of the assizes.” The grave irony of the learned judge was felt to represent truly a state of things well-nigh intolerable, and a reform in the law of divorce was felt to be inevitable. The hour and the man came in 1857, the man in the person of Sir Richard Bethell (afterwards Lord Westbury), then attorney-general.
The Act of 1857.—Probably few measures have been conceived with such consummate skill and knowledge, and few conducted through parliament with such dexterity and determination. The leading opponent of the measure was Mr Gladstone, backed by the zeal of the High Church party and inspired by his own matchless subtlety and resource. But the contest proved to be unequal, and after debates in which every line, almost every word, of the measure was hotly contested, especially in the House of Commons, the measure emerged substantially as it had been introduced. Not the least part of the merit and success of the act of 1857 is due to the skill which, while effecting a great social change, did so with the smallest possible amount of innovation. The act (which came into operation on the 1st of January 1858) embodied two main principles: 1. The constitution of a lay court for the administration of all matters connected with divorce. 2. The transfer to that court, with as little change as possible, of the powers exercised in matrimonial matters by (a) the House of Lords, (b) the ecclesiastical courts, (c) the courts of common law.
The Constitution of the Court.—The new court, termed “The Court for Divorce and Matrimonial Causes,” was constituted by the lord chancellor, the chiefs and the senior puisne judges of the three courts of common law, and the judge of the court of probate (which was also established in 1857), but the functions of the court were practically entrusted to the judge of the court of probate, termed the “Judge Ordinary,” who thus in matters of probate and divorce became the representative of the former ecclesiastical jurisdiction. The judge ordinary was empowered either to sit alone or with one or more of the other judges to constitute a full court. The parties to a suit obtained the right of trial by jury of all disputed questions of fact; and the rules of evidence of the common law courts were made to apply. An appeal to the full court was given in all matters, which the judge ordinary was enabled to hear sitting alone.