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Divorce

( Originally Published 1936 )



THE uniformity of Western legislation with regard to monogamy as the only recognised kind of matrimony contrasts sharply with the extraordinary variability of its attitudes towards the dissolubility of marriage. The extremes in this respect are on the one hand the total prohibition of divorce in countries following the canon law of the Roman Catholic Church, and on the other hand the provision of the Soviet law which recognises even the desire of one of the parties as an unconditional ground of divorce.

According to the fully developed Roman Catholic doctrine, a consummated Christian marriage is a sacrament and must as such remain valid for ever. It represents the union between Christ and the Church, and is consequently as indissoluble as that union. It is also permanent according to the law of nature, because only as permanent can marriage fulfil its object. And God made it so at the very beginning of our race, when He decreed that a man shall leave his father and his mother and shall cleave to his wife, and they shall be one flesh. Yet in spite of the theory of the indissolubility of Christian marriage, the Roman Catholic doctrine gives ecclesiastics a large practical power of dissolving marriages which may have appeared perfectly valid. The Church recognised a legal process which was popularly, though incorrectly, called a divorce a vinculo matrimonii, " from the bond of matrimony ", in case the union had been unlawful from the beginning on the ground of some canonical impedimen:, such as relationship or earlier engagement of marriage. This only implied that a marriage which never had been valid would remain invalid; but practically it led to the possibility of dissolving marriages which in theory were indissoluble. For, as Lord Bryce observes, " the rules regarding impediments were so numerous and so intricate that it was easy, given a sufficient motive, whether political or pecuniary, to discover some ground for declaring almost any marriage invalid ". A man might slip out of matrimonial bondage by swearing that he was his wife's distant cousin, or had loved her sister in his youth, or had before his marriage stood godfather to one of her near spiritual kindred.

For a long time, however, the doctrine of the Western Church was not accepted in full by the legislators. The Christian emperors laid down certain grounds on which a husband could divorce his wife and a wife her husband without blame; and the possibility of divorce remained in the Roman codes of the German kings. But since the days of Charlemagne the canonical doctrine of the indissolubility of marriage entered the secular legislation of German peoples, and in the tenth century the ecclesiastical rules and courts gained exclusive control of this branch of law in Germany. At a somewhat earlier date the provisions of the Roman law had been superseded by new rules enforced by the Church in the regions where the imperial law had been observed. For many centuries afterwards divorce was not permitted by law in any Roman Catholic country, until it was introduced in France in 1792. At the Restoration in 1816 it was abolished there, but was reenacted by a law of 1884. In the course of the nineteenth century and during the present one it was made legal in various Roman Catholic countries, also in the case of marriage between Catholics. In the United States South Carolina stands alone in granting no divorces whatsoever, which is the more remarkable as no state has fewer Roman Catholic citizens. It is the only Protestant community in the world which nowadays holds marriage indissoluble.'

The canonical doctrines that marriage is a sacrament and that it is indissoluble save by death were rejected by the Reformers. As said above in the discussion of adultery, they all agreed that this offence should be a ground of divorce, and most of them regarded malicious desertion as a second legitimate cause for the dissolution of marriage. The latter opinion was based on St. Paul's dictum that a Christian married to an unbeliever is not under bondage " if the unbeliever depart, which was broadened by Luther so as to include malicious desertion even without a religious motive. The same reformer admitted that the worldly authorities might allow divorce also on other strong grounds, and mentioned himself obstinate refusal of conjugal inter-course as sufficient cause for it. Several reformers went farther than Luther; but the Fathers of English Protestantism as a body were more conservative than those of the Continent.

Desertion, or " malicious " desertion, or desertion " without just cause or excuse ", is very frequently mentioned as a ground of divorce by modern law-books, especially Protestant ones. In Germany the term of desertion must be at least one year; in other countries two or three or even five years. But desertion may be a ground of divorce even when it is not expressly mentioned as such by the law, as in France and Belgium, in so far as it may be regarded as an injure grave justifying dissolution of the marriage. In the laws of various countries attempt on the life of one spouse by the other is specified as a ground on which a divorce may be obtained; and in most countries in which divorce is allowed ill-treatment of some kind is a sufficient reason for it. In almost all of the commonwealths of the United States " divorce "—generally " from the bond of matrimony ", but in some of them " from bed and board " only—is obtainable for cruelty. The degree of cruelty necessary is usually actual and repeated violence endangering life, limb, or health, or giving reasonable grounds to apprehend such danger; but some jurisdictions add to this intolerable indignities to the person, public and false accusations of adultery, habitual manifestations of hatred, or violent and ungovernable temper. An extremely frequent ground of divorce is the condemnation of one of the parties to a certain punishment or his or her being convicted of a certain crime. The German code speaks neither of punishment nor of crime, but regards dishonourable or immoral conduct generally as a " relative " ground of divorce, which implies that it is left to judicial discretion whether in the special circumstances of the case divorce ought to be granted.

There are yet some particular offences that are mentioned in some law-books as causes for divorce. In the United States a husband who is able to support his wife, but for a certain time neglects to do so, may, according to many jurisdictions, be divorced on that account; and according to an even greater number, divorce may be obtained on proof of the habitual drunkenness of either party for varying terms. In North Carolina a husband may obtain a divorce if his wife has without good reason refused sexual intercourse to him for the space of twelve months. The refusal of sexual intercourse was a ground of divorce according to various German law-books previous to the imperial code, and, though not specially mentioned in that code, it is considered to be included among the " relative " grounds of divorce. In England the mere wilful refusal of a wife to submit to her husband's embraces is not per se a ground for annulling a marriage, but if she refuses to submit to inspection the court will presume her impotence, being averse to a husband using excessive force; and so also, if a husband refuses to consummate his marriage, the court may draw the inference that such refusal arises from impotence and may annul the marriage.

Besides offences of some kind or other committed by either husband or wife and entitling the other party to demand a dissolution of the marriage there are other circumstances recognised as grounds of divorce, which may or may not involve guilt in one of the parties, but in all cases are supposed to make marriage a burden for the other spouse. Impotence in the husband or wife, existing at the time of marriage and afterwards, but unknown to the other party, is specially mentioned as a cause of divorce in some law-books. In England it has long been a ground for pronouncing an otherwise valid marriage invalid; and in the United States also divorce is commonly granted for incurable physical incapacity if the plaintiff was ignorant of the defendant's condition. Other grounds of divorce, according to many law-books, are contagious venereal or certain other diseases, and insanity which existed at the time of marriage or prior to it without the knowledge of the other party, or insanity which has been pronounced incurable or gives no reasonable hope of recovery after three or sometimes five years duration.

These are the most general grounds of divorce laid down in modern law-books. English law is the only one in Europe that recognises none but sexual reasons either for the dissolution or the annulment of marriage. The Majority Report of the Royal Commission of 1909 recommended that divorce should, in the future, be obtainable for the following reasons: adultery; wilful desertion for three years and upwards; cruelty; incurable insanity after five years' confinement; habitual drunkenness found to be incurable from the first order for separation; and imprisonment under commuted sentence of death.1 These recommendations were deprecated by the Minority Report, which declared, on the one hand, that there was no public demand for any such concessions, and on the other hand, that, as the experience of other countries proved, the granting of the concession was invariably followed by a sudden and serious increase in the number of demands for divorce. The recommendations of the Majority Report have hitherto been ignored, with the exception of the proposal that in the case of adultery women should be placed on an equality with men.

Legislators are still imbued with the idea that a marriage must inevitably end in a catastrophe, either by the death or some great misfortune of one of the consorts or by the commission of a criminal or immoral act, which is evidently regarded as a more proper ground or excuse for dissolving the marriage than the mutual agreement of both. Yet divorce by mutual consent is very ancient in European legislation. According to Roman law a " free " marriage, which implied that the wife did not fall under the manus of her husband, could be dissolved either by mutual agreement between both parties or by the will of one party only; and the rules of divorce which were recognised in the case of a free marriage were afterwards extended to marriages with manus. Divorce by mutual consent was permitted in the Roman Empire even in Christian times. The facility of such divorce remained in the Roman codes of the German kings; and those subjects of the Western rulers who elected to live, under the old Teutonic systems of law seem to have had an equal facility. Thus the dooms of Aethelbirht, Christian though they be, suggest that the marriage might be dissolved at the will of both parties or even at the will of one of them. In ancient Ireland separation of married couples might take place either by mutual consent or as the outcome of legal proceedings; and in ancient Wales either husband or wife might, practically, separate whenever one or both chose. In later times, when the Roman Catholic prohibition of divorce of any kind was revoked by the Reformers, mutual consent was not recognised as a legitimate ground for dissolving a marriage. It only reappeared as the result of the fresh impetus to a more liberal legislation which was given in the eighteenth century by the new philosophy with its conceptions of human freedom and natural rights. If marriage is a contract entered into by mutual consent, it seemed natural that it should also be dissolvable if both parties wish to annul the contract. In the Prussian Project des Corporis Furis Fridericiani of 1749, " founded on reason and the constitutions of the country ", it is admitted that married people may demand with common consent the dissolution of their marriage. The procedure in the affair, however, shall be only gradual. First, endeavours shall be made to reconcile the parties, and, if it be necessary, a clergyman shall be called to give them a suitable exhortation. If these steps prove ineffectual, they shall be separated from bed and board for one year; but if after this period they still persist in their petition and there remain no more hopes of reconciling them, the marriage may be dissolved. The ` Project ' never became law; but in practice divorce was freely granted by Frederick II ex gratia principis at the common request of husband and wife.2 In the Prussian ` Landrecht' of 1794 divorce by mutual consent is admitted if the couple have no children and there is no reason to suspect levity, precipitation, or compulsion; and power is given to the judge to dissolve a marriage in cases in which he finds a dislike so strong and deeply rooted that there is no prospect of reconciliation and the marriage consequently will fail to fulfil its aim.

In France the new ideas led to the law on divorce of 20th September 1792, previous to which date the Roman Catholic canon law prevailed. In the preamble of the new law it is said that marriage is merely a civil contract, and that the facility in obtaining divorce is the natural consequence of the individual's right of freedom, which is lost if engagements are made indissoluble. Divorce is granted on various grounds, among others on the mutual desire of the two parties, and even at the wish of one party on the ground of incompatibility of temper, subject only to a short period of delay and to the necessity of appearing before a family council who are to endeavour to arrange the dispute. It was said that divorce was instituted in order to preserve in marriage " cette quiétude heureuse qui rend les sentiments plus vifs ". Marriage would no longer be a yoke or a chain, but " l'acquit d'une dette agreable que tout citoyen doit a la patrie. . . . Le divorce est le dieu tutélaire de l'hymen. . . . Libres de se séparer, les époux n'en sont que plus unis ". The new law was certainly very popular: in the year VI. the number of divorces in Paris exceeded the number of marriages. But six years later, in 1804, the law of 1792 was superseded by the new provisions in Napoleon's Code civil des Francais. Divorce was made more difficult. Mere incompatibility of temper is no longer recognised as a cause for it. Marriage may still be dissolved on the ground of mutual consent, but on certain conditions only: the husband must be at least twenty-five years of age and the wife twenty-one; they must have been married for at least two years and not more than twenty years, and the wife must not be over forty-five years of age; the parents or the other living ascendants of both parties must give their approval; and the mutual and unwavering consent of the married couple must sufficiently prove " that their common life is insupportable to them, and that there exists in reference to them a peremptory cause of divorce ". When, after the abolition of divorce in France in 1816, it was reenacted by a law of 1884, the divorce law of the Napoleonic code was again introduced, but with important changes, one of which was that divorce by mutual consent had disappeared.

Nowadays it is allowed in Belgium and Rumania, but is in both countries surrounded by the old barriers of the Code Napoléon, which makes it very rare in practice; it is said that in Rumania only about one divorce out of a hundred takes place by mutual consent. The civil code of imperial Austria permitted such divorce to Jews—though to no other citizens—in accordance with the principle of Rabbinic law that the court has no right to interfere when both parties declare that their marriage is a failure and they desire to dissolve it. In Mexico the marriage may be dissolved, after the observance of certain formalities, by the mutual agreement of the parties when they have been married for at least a year. In Portugal a divorce may be obtained after a separation de facto by mutual consent for ten years.' In Wisconsin and one or two other North American states there is the provision that when married parties have voluntarily lived separate five years the court may dissolve the marriage bond, and the interpretation of this provision is that " the separation must be mutual ". In Denmark marriage may be dissolved upon the common application of the parties after living apart for one year and a half,and in Norway and Guatemala after one year's separation, in accordance with a decree of separation; and such a decree may itself have been obtained by mutual consent. The laws of Sweden, Finland, Greece, and Costa Rica admit likewise consensual separation; and a separation may, upon the application of either husband or wife, be converted into a divorce, in Denmark after two years and a half, in Norway, Finland, Greece (apparently), and Costa Rica after two years, and in Sweden after one year. In the Soviet law there are no such restrictions. It goes in fact even further than the French law of 1792 by simply stating that " the grounds for divorce may be either the mutual consent of the parties or the desire of one of them ". If the union is not entered in the registry books, men and women part without formalities. If they have " inscribed themselves " all they have to do is " write themselves out ", that is, record their separation in the books. The law steps in only when there are children, and then not to hold the family together but to make provision for the children.'°

In various countries of Eastern civilization mutual consent is a ground of divorce. In China it was recognised as such even in the old code, which expressly said that, " when the husband and wife do not agree, and both parties are desirous of separation, the law limiting the right of divorce shall not be enforced to prevent it "." The Japanese Civil Code promulgated in 1896—1898 recognises two forms of divorce: by mutual agreement and by judicial decree. In order to effect a divorce by mutual agreement, however, a person who has not yet reached the age of twenty-five years must obtain the consent of those persons whose consent would be necessary for his or her contracting a marriage. The latter form of legal divorce, which requires an act of the court upon the contested request of one of the parties, must be for some one of certain causes recognised by law.l Among certain low castes in the north of India and among many castes, both high and low, in the south, the orthodox Hindu law of divorce is more or less disregarded, usage having superseded texts. Agree-ably to such usage, the granting of a divorce, or the recognition of a divorce as one properly made, is the duty of the caste. In some cases the mere will of either party or of both parties suffices, and there the caste can do very little, except to accept what has been done; and where it is allowed by custom, a divorce by mutual agreement is also recognised by law. Among the Buddhists of Burma marriage can be annulled by either side without much difficulty, and may always be dissolved by the consent of the parties. In Siam mutual consent is likewise a good and valid ground of divorce.

The grounds on which divorce may be obtained according to the existing laws of those European and American states in which it is permitted belong to a branch of legislation which has of late been subjected to so many changes that I may have been unable to keep pace with all of them, and some of my statements, though derived from the best sources available to me, may possibly have become antiquated in the course of the last few years. In any case, the unequivocal trend of those changes has been to increase the legal facilities of divorce; and, as Dr. Ellis remarks, " in no civilized country is there any progressive movement for adding to the legal impediments ". The legislators have not, like the framers of the Minority Report of the Royal Commission of 1909, found reasons to think that " the State is called rather to strengthen than to relax the strictness of its marriage laws ". Montaigne wrote long ago: " We have thought to tie the nuptial knot of our marriages more fast and firm by having taken away all means of dissolving it; but the knot of the will and affection is so much the more slackened and made loose, by how much that of constraint is drawn closer.

Quod licet, ingratum est; quod non licet, acrius urit (` What you may, is displeasing; what is forbidden, whets the appetite ') ".s A strong reason for the recommendations of the majority report of the Royal Commission was the probability that if divorces could not be obtained in the cases recommended, many of those who wanted them, but could not get them, would form irregular connections. " Paradoxical as it may appear," says Dr. Lichtenberger, " it is the reverse of the traditional process which seems to give the greatest promise of success, that is, the loosening of the marriage bonds in order to strengthen them ".

It is a mistake to believe that the rates of divorces are proportionate to the facility with which divorce may be obtained according to law. Dr. Willcox even maintains that " the immediate, direct and measurable influence of legislation is subsidiary, unimportant, almost imperceptible ". In support of this opinion he pointed out that in New York, in spite of its more stringent divorce law, the rate of divorces was higher than in New Jersey and only a little lower than in Pennsylvania. This means that more divorces for adultery were granted in New York, in proportion to the population, than for adultery and desertion in New Jersey, and almost as many as for adultery, cruelty, and imprisonment in Pennsylvania. From this he drew the conclusion that " limiting the causes increases the number of divorces in those which remain, but without materially affecting the total number. A certain proportion of the married couples in the three states desired divorce and were willing to offer the evidence required in' order to obtain the decree ". Professor Lichtenberger more recently tabulated the new grounds for divorce legislated in twelve of the eighteen states in which significant changes were made, and examined the divorce-rate in the five years following each of those twelve new pieces of legislation. He then found that in not a single instance was there the slightest suggestion that the divorce-rate in any state had been influenced materially by the introduction of new causes. Another American writer points out that legal grounds for divorce fail to explain the wide divergence in state divorce-rates between the eastern and western sections of the country; and nearly every one of the American states has a higher divorce-rate than any European country, although their grounds of divorce are more restricted than those laid down in several European law-books. Much depends, of course, on the manner in which the law is administered.

It seems that the exceptionally great divorce-rates in the United States are largely due to the laxity of procedure which has grown up there. One wife alleges that her husband has never offered to take her out " riding " (driving); another, that he does not come home till ten o'clock at night, and when he does return he keeps plaintiff awake talking.' At the same time we find that in England the removal of a legal obstacle to divorce has distinctly increased its frequency. Shortly after the Act was passed in 1923 which gave men and women equality as regards grounds for divorce, the divorce-rate began to climb, and an estimate of this increase shows that between 1924 and 1930 an addition of about 36 per cent. per year was made to the residual divorces as a result of that Act; this, however, may be regarded as an extreme case. But while the stringency of the law may generally exercise comparatively little influence on the number of divorces, it certainly leads to a great deal of falsehood, perjury, and humiliating pretences. As Judge Lindsey remarks, " it must be shown, often by deliberately manufactured testimony, that one or the other or both of the parties have been guilty of some reprehensible conduct toward each other, such as adultery, cruelty, and the like; and thus, in order to break away from each other, they must stand up in public and accuse each other of offences that would often be impossible to either of them ".

The surest method of keeping down divorces is to make them very costly. The history of divorce in England gives us convincing evidence of this. Although the annulment of marriage by the Church was possible in early times, there was no real divorce (that is, divorce a vinculo) until the middle of the sixteenth century, when the Marquis of Northampton had his second marriage declared valid by a " Commission of learned men " on the ground of his first wife's infidelity. This decision was confirmed by Act of Parliament, and it was by this means that divorces were obtained in the succeeding centuries, since a valid English marriage could not be dissolved by mere judicial authority. But such a parliamentary divorce was a remedy that was reserved for the very rich: owing to the triple cost of the law action, the ecclesiastical decree granting a " divorce from bed and board ", and the legislative proceedings, it could be obtained only through the expenditure of a fortune sometimes amounting to thousands of pounds. The result was that only Ito divorce bills were passed during the period 1715 to 1852, an average of less than one a year. In the civil divorce law of 1857 the legal principle of the indissolubility of marriage was at last abandoned (after stubborn resistance), and for the dilatory and expensive proceedings of three tribunals was substituted one inquiry by a court specially constituted to exercise this jurisdiction. The cost of divorce was thus reduced, but it remained still sufficiently high to make divorce restricted to a definite monetary class. This was hardly creditable to a nation who was proud of its democratic institutions, and in 1914 a Poor Persons' Procedure was initiated, which made it possible for a " poor person "—one whose income does not exceed £2 a week or who does not possess goods worth more than £50—to obtain a divorce for not more than £5 and frequently even for a few shillings or nothing. Now at last the working class began to enter the field of divorce: during the period 1922 to 1930 in six of the years, Poor Persons added not less than 45 per cent. per year to the other divorces.' Yet the law is still harsh to people of small means. The question of costs bears hardly on those who are just outside the limits of the Poor Persons' Act, and many judges have commented on cases in which a litigant with an income of z, Ios. or 3 a week has become responsible for divorce costs of 100 more. The Council of the Law Society has recommended that in such " border-line " cases the Poor Persons Committees should have power to grant a higher income certificate, but at present that remains only a recommendation. At the other end of the social scale there are cases in which the costs can amount to thousands, and sometimes tens of thousands of pounds, especially if the case goes to the Court of Appeal and, possibly, to the House of Lords.

The existence of children has been a serious argument against facility of divorce. It could of course be no argument against an easy dissolution of childless marriages; but it is extremely seldom we find that in legal, and seldom even in proposed grounds of divorce, any discrimination is made between marriages with children and childless ones. There seems also to be good reason for making no such distinction; for when it is desirable for a couple to be divorced it is evidently, as a rule, best for the children as well, if there are any, the company and supervision of one parent being preferable to the management of two who cannot agree; as Mr. Shaw says, " an unhappy household is a bad nursery ". This is recognised by many writers whose opinions command respect,4 and also by social workers who do not discount the difficulties which are involved for the child, and particularly the young child, when his parents sever their marriage ties.' " No child ", says Dr. Mowrer, " can develop normally in a family situation surcharged with tension between parents. Even though the parents do all in their power to conceal their conflict from their children, minimal expressions, incipient coldness and reserve, belie all attempts to hide the strained relations, and therefore react upon the child ". Dr. Nimkoff observes that such parental discord not only tends to build up tensions within the child, but also serves as an excellent training course for him. " Nothing conduces to antagonistic attitudes more than to be reared in their midst. A home torn by strife conditions the child in habits of pugnacity, and it causes him to react violently against the whole familial situation. Illness, nervous disorders, and even nervous break-down may be the child's responses to the hostile forces arrayed against him ".

There is every reason to believe that the recent trend of Western legislation to increase the facilities of divorce will continue in the future. The impediments to it are only the diluted effects of the Canon law with its total prohibition of divorce, in conformity with the ascetic spirit of Christianity. In many Catholic countries the Church has already lost her power to enforce this prohibition, and in some of them it has even been succeeded by a remarkably liberal divorce law, owing to the fact that its grounds of divorce have been largely copied from the earlier law relating to judicial separation, which could be obtained more easily than divorce in most Protestant countries.' We may take for granted that the Canonic dogma of the indissolubility of marriage, in spite of papal protests, will, before very long, lose its hold on the legislation in the rest of the Catholic world; and so also the idea that a divorce presupposes a delinquent, which is likewise rooted in the ascetic tendencies of early Christianity, is undoubtedly doomed. The divorce laws of the different Western countries will, no doubt, always vary in details; but I think one may safely predict that divorce by mutual consent will, sooner or later, be generally recognised by them. As we have seen, it has in recent years been established in an increasing number of countries; and elsewhere it is strongly advocated by enlightened opinion, both in Europe and America. The arguments in favour of it seem unanswerable. Milton, for instance, who was its first protagonist in Christendom, insisted that " marriage is not a mere carnal coition, but a human society ";3 that the just ground for divorce is " indisposition, unfitness, or contrariety of mind, arising from a cause in nature unchangeable, hindering, and ever likely to hinder, the main benefits of conjugal society, which are solace and peace "; and that it is a violent, cruel thing " to force the continuing of those together, whom God and nature in the gentlest end of marriage never joined ". Dr. Lichtenberger observes that " the dissolution of loveless marriages now is regarded as less immoral than their continuance. The enlightened conscience rebels against compulsion in sex relations, regarding it as a species of rape as revolting within the marriage bond as it is without ". Mr. Shaw makes the acute remark: " To impose marriage on two unmarried people who do not desire to marry one another would be admittedly an act of enslavement. But it is no worse than to impose a continuation of marriage on people who have ceased to desire to be married ".

Certain objections have been raised to divorce by mutual agreement, besides the general one that it would make divorce too easy and thereby lessen the " sanctity of marriage ". In his evidence before the Royal Commission, Lord Gorell argued that divorce by mutual consent would in practice " probably prove to amount to divorce at the will of either party who could make the other's life unbearable in order to force a consent ".b A similar objection might be made to the only ground of divorce which is now permitted by the law of England: it might give rise to the practice of one of the partners hectoring the other by adulterous behaviour with a view to coercing the latter into suing for a divorce. Another argument which has been adduced against divorce by mutual agreement is that it might lead to a precipitated dissolution of the marriage. Mr. Groves asks: " How many of the marriages that have now achieved happiness would have been dissolved in the early days of matrimonial adjustment had there been in the past a social code built upon divorce by mutual consent? " He answers: No one knows, but men and women of experience have estimated that it would have been as high as fifty per cent ". (Another opponent of divorce by mutual consent writes, on the contrary, that such consent to the dissolution of a marriage " is comparatively rare, for it is a matter of human experience that one of the partners very often refuses to release the other ". Precipitation is by no means infrequent when a marriage is dissolved on other grounds; many divorced couples would perhaps remarry if they did not fear it would make them ridiculous.3 It is just when divorce is possible on the ground of mutual consent that legislators have taken precautions to prevent a hasty step: they have done so in all modern laws which recognise such a ground for divorce, particularly by requiring previous separation for a certain period, with the single exception of the Soviet law. Similar pre-cautions may be taken in the future. Lindsey suggests that if the couple have children an attempt to reconcile them should be made by a commission consisting of a psychiatrist, an expert from the medical or allied scientific profession, and a lawyer, especially trained in psychology and biology. " If it failed, then upon mutual announcement of the couple that they still wanted a divorce for incompatibility, it would be granted —because they wanted it ". I am not very hopeful of the success of such interference, and believe that by living apart for some time people will best be able to judge whether they want to live apart for ever. In Stockholm about 75 per cent. of the cases of consensual separation end in divorce in spite of the efforts of mediators. A great advantage of divorce by mutual consent—where no delinquency has to be established—is that it may become as cheap as marriage, as the intervention of a lawyer should be unnecessary except perhaps for settling questions of property. In Soviet Russia divorce is free of cost; the clerk who registers it may be only a grammar-school graduate.

The suggestion has been made that divorce should be obtainable even at the desire of one of the parties, either husband or wife, as is nowadays the case in Russia, without a probationary period preceding it. According to Mr. Shaw, the husband " is to be allowed to discard his wife when he is tired of her, and the wife the husband when another man strikes her fancy ". It does not matter that the other party may wish to maintain the marriage: " the same hardship arises whenever a man in love proposes marriage to a woman and is refused. The refusal is so painful to him that he often threatens to kill himself and-sometimes even does it ".5 This argument is more witty than adequate: marriage may, after all, be reasonably supposed to impose upon a man and woman the obligation of showing greater regard for each other's feelings than can be expected in the case of unmarried people. Judge Lindsey is of opinion that a childless marriage should be dissolvable when only one of the parties wants divorce.6 Dr. Schweitzer maintains that at least when there are no children the wish of either the husband or the wife to dissolve a marriage felt by him or her as an intolerable burden should be a sufficient ground for divorce; but be called liberal in so far as they give married people greater facility to extra-matrimonial connections, but on the other hand they deprive them of a right referring to such an essential fact of marriage as the relation of sexual intercourse. The arguments adduced in support of them contain statements the accuracy of which is undeniable. In an earlier chapter I have pointed out that adultery does not necessarily destroy conjugal love or prevent the return of harmonious relations between husband and wife; that when it is the juridical ground for divorce it is rarely the sole or perhaps even the real ground; that the disturbance caused by it may be tempered by a more careful consideration of the case; and that some reflection may reveal that the apparently innocent party is the true cause of it. But at the same time everybody must admit that in many cases adultery justifies, nay necessitates, a break of the marriage tie. Even Bertrand Russell recognises this when he says that adultery " is no good ground for divorce, except when it involves a deliberate preference for another person, on the whole, to the husband or the wife, as the case may be ". He does not tell us how a divorce could be effected in a case where there is such a good ground for it, if adultery ceased to be a legal ground. It might perhaps be obtained, without any of those subterfuges which he rightly deprecates, if there were a law like the Swiss one, according to which a marriage may be dissolved under circumstances seriously affecting the maintenance of the conjugal tie. But Bertrand Russell does not speak of any such ground of divorce; he only suggests " divorce by mutual consent in all cases where there is not some very definite and demonstrable reason, such as insanity, to justify a one-sided desire for divorce ". I strongly doubt that any law-court would be capable of settling the question whether adultery in a given case seriously disturbs the conjugal relations or not; this is a matter for individual decision. And I certainly believe that no divorce law, by leaving out adultery as a ground of divorce, will deprive marriage of that moderate protection against the interference of extra-matrimonial connections with which it has provided it ever before.

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