There are two statements frequently made regarding divorce in the United States which do not find warrant in the statistics on the subject. The first is, that the real motive for divorce with one or both parties is the desire for marriage to a third person. The second is, that a very large proportion of divorces are granted to persons who move from one jurisdiction to another in order to avail themselves of lax divorce laws. On the first point the American statistics are practically silent, since, in issuing a marriage licence to parties one or both of whom have been previously divorced, no record is generally made of the fact. In Connecticut, however, for a number of years this information was required; and, if the statements were trustworthy, the number of persons remarrying each year was about one-third the total number of persons divorcing, which is probably a rate not widely different from that of widows and widowers of the same age. Foreign figures for Switzerland, Holland and Berlin indicate that in those regions the proportion of the divorced who remarry speedily is about the same as that of widows and widowers. What statistical evidence there is on the subject therefore tends to discredit this popular opinion. The evidence on the second point is more conclusive, and has gone far towards decreasing the demand for a constitutional amendment allowing a federal marriage and divorce law. About four-fifths of all the divorces granted in the United States were issued to parties who were married in the state in which the decree of divorce was later made; and when from the remaining one-fifth are deducted those in which the parties migrated for other reasons than a desire to obtain an easy divorce, the remainder would constitute a very small, almost a negligible, fraction of the total number.
It is difficult, perhaps impossible, to say how far the frequency of divorce in the United States has been or is a social injury; how far it has weakened or undermined the ideal of marriage as a lifelong union between man and woman. In this respect the question is very like that of illegitimacy; and as the most careful students of the latter subject agree that almost no trustworthy inference regarding the moral condition of a community can be derived from the proportion of illegitimate children born, so one may say regarding the prevalence of divorce that from this fact almost no inferences are warranted regarding the moral or social condition of the population. It is by no means impossible, for example, that the spread of divorce among the negro population in the South marks a step in advance from the condition of largely unregulated and illegal unions characteristic of the race immediately after the war. The prevalence of divorce in the United States among the native population, in urban communities, among the New England element, in the middle classes of society, and among those of the Protestant faith, indicates how closely this social phenomenon is interlaced with much that is characteristic and valuable in American civilization. In this respect, too, the United States perhaps represent the outcome of a tendency which has been at work in Europe at least since the Reformation. Certainly the divorce-rate is increasing in nearly every civilized country. Decrees of nullity of marriage and decrees of separation not absolutely terminating the marriage relation are relatively far less prevalent than they were in the medieval and early modern period, and many persons who under former conditions would have obtained relief from unsatisfactory unions through one or the other of these avenues now resort to divorce. The increasing proportion of the community who have an income sufficient to pay the requisite legal fees is also a factor of great importance. The belief in the family as an institution ordained of God, decreed to continue “till death us do part,” and in its relations typifying and perpetuating many holy religious ideas, probably became weakened in the United States during the 19th century, along with a weakening of other religious conceptions; and it is yet to be determined whether a substitute for these ideas can be developed under the guidance of the motive of social utility or individual desire. In this respect the United States is, as Mr Gladstone once wrote, a tribus praerogativa, but one who knows anything of the family and home life of America will not readily despond of the outcome.
The great source of American statistical information is the governmental report of over 1000 pages, A Report on Marriage and Divorce in the United States 1867 to 1886, including an Appendix relating to Marriage and Divorce in Certain Countries of Europe, by Carroll D. Wright, Commissioner of Labour; together with the further report for 1887 to 1906. The statistics contained in the former volume have been analysed and interpreted in W. F. Willcox’s The Divorce Problem: A Study in Statistics (Columbia University, New York, 1891, 1897). Further interpretations are contained in an article in the Political Science Quarterly for March 1893, entitled “A Study in Vital Statistics.” The best legal treatise is probably Bishop on Marriage, Divorce, and Judicial Separation. See also J. P. Lichtenberger, Divorce: A Study in Social Causation (New York, 1909).
(W. F. W.)
[1] In Constantinidi v. Constantinidi and Lance (1903), in which both parties were guilty of misconduct, it was held by Sir Francis Jeune (Lord St Helier) that where a wife has by her misconduct broken up the home (the husband’s misconduct not having conduced to the wife’s adultery) the court would exercise its discretion in favour of the husband petitioner, and, further, the wife being a rich woman, it was justifiable to give her husband a portion of her income, in order to preserve to him the position he would have occupied as her husband, the broad principle being that a guilty respondent should not be allowed to profit by divorce. But further litigation concerning this case occurred as to the variation of the marriage settlements in favour of the husband, and the decision of the court of appeal in July 1905 considerably modified the decision of Sir Francis Jeune.—Ed. E. B.
[2] It is to be noted that by a decision of the court of appeal in Harriman v. Harriman in 1909, where a wife has been deserted by her husband and has obtained a separation order within two years from the time when the desertion commenced, she loses her right to plead desertion under the Matrimonial Causes Act 1857, and is therefore not entitled to a divorce after two years’ desertion, upon proof of adultery. See also Dodd v. Dodd, 1906, 22 T. L. R. 484.
[3] In 1909 a Royal Commission was appointed to inquire into the law of divorce, with special reference to the position of the poorer classes.
[4] It is interesting to observe how, according to the latest decisions of the House of Lords, cruelty, according to English law, includes some but not others of the forms of injury for which, under the term of injures graves, the French law affords a remedy. It may well be doubted whether the view taken by the minority of the peers in Russell v. Russell, which would have included in the definition of cruelty all, or nearly all, of that which the French law deems either sévices or injures graves, would not have better satisfied both the principles of English jurisprudence and the feelings of modern life.