Divorce Law Reform from a Scottish Standpoint
WITH much of Mr. Haynes's article in your issue of December 8th I am in complete sympathy. I have never understood how the Church of England, which at present offers the greatest resistance to divorce reform in that country, should base its opposition mainly on the literal interpretation. of a. single text of the New Testament. There is no better illustration of the scrip, tural saying that it is the letter that killeth and the spirit that giveth life. The standpoint of Christ was not that of a law-giver promulgating a code of Iasi; . but that of a moral teacher who held up the highest ideals of conduct for our guidance and imitation. So interpreted, the text lays down as a general rule of conduct. that marriages should only be dissolved by death (for it is far from certain that the exception, " save for the cause of adultery," was not a later inter- polation). It was a vigorous protest against the practice that prevailed amongst the Jews of the husband having the right at any time to discard his wife by giving her a bill of divorcement—a practice which still survives in Moslem communities: Still more li"vas it a protest against the Roman laws of the time which allowed entire freedom of divorce to either spouse :— " Passion, interest or caprice suggested daily motives for the dissolution of marriage—a word, a sup, a message, a letter,—the mandate of a freedman, declared the separation—the most tender of human connections was degraded to a.transient society of profit or pleasure."—Fraser : Husband and Wife—II., p. 1130.
Prior to the Reformation divorce was not permitted • ih Scotland as in all Catholic countries, although separa- tions were extremely common. Divorce for adultery was not intrOdriced by any statute, but immediately after the Reformation the Courts held it to be part of the common law with the full approval of the Protestant Church. Divorce for desertion was, on the other hand, the subject of the Scots Act of Parliament, 1573, cap. 55. -Broadly speaking, it enacts that a spouse who wilfully deserts the society of the other, and obstinately remains• in desertion for four years, is liable to be divorced. The formalities prescribed by this Act have been modified or "dispensed with, but in substance it is still the law of " -Scotland. • The Scottish Iteformers, although they rejected • tradition and based their ' theology entirely oh the Scriptures, never regarded this remedy as inconsistent with Christian teaching. In the vast' majority of cases" it does not, indeed, enlarge the remedy common to both Countries of divorce for adultery. In my long experience of such cases as an advocate, and afterwards as a judge, I htvie never co-me across a case where it could with any -plausibility be affirmed that a man who deserted his wife and children- and left them to starve, so far as he- was "concerned, led a chaste life during the whole of the statutory period of four years. The typical case Was that of a poor woman who, after a few years' life with a worthless husband, was one day left' to her own resources because he crab-8AM- suddenly for the colonies. After lour years, during which she never heard of or from hini; 'some decent workinan 'Wished te marry her, and she, being a self-respecting woman who had some regard for her future children's status in life, then applied for a divorce. Evidence had to be led that she had failed, after due inquiry, to ascertain her husband's where- ' shouts. This being corroborated by his relatives and the fact that he had left her without her consent, she obtained her decree. For her to employ detectives to trace her erring Spouse, and to eitablish—what was in most cases probably the fact—that he was living with some other woman, would have been entirely beyond her means, ' and she would either have been forced to continue a life of practical vicinity or to enter into an irregular union that her religion condemned. I am frankly unable to comprehend the mentality Of those people who regard - desertion of this kind as no ground for divorce, and yet assent to its being granted for a casual act of adultery which few women ever make the ground of an action of divorce unless they have become so completely ` estranged frenn their husbands that they cannot bear to live with them.
Possibly it was practical considerations of this kind that influenced our Protestant clergy to accept this form of divorce as perfectly consistent with scriptura canons. It must be kept in view that it was only five or : six centuries after the Christian era, that the Western Church having got control- of the legislatures introduced the strict view Of the indissolubility of marriage to which the Roman Church has since adhered, while permitting marriages of those who could afford the cost to be annulled on -grounds that are oppOsed to all our notions" of justice. The Greek Church on the other. hand has alwayi permitted divorce, although it still adheres to the view until recently prevalent in England that mere unfaithfulness on the husband's part does not entitle the wife to any remedy.
The Scottish law of divorce which has been in operation ' without substantial change since the to is rightly considered' as being conducive to morality while it prevents much undeserved suffering, and 'I have yet to learn that the standard of morality of the Scottish people is not at least as high as that of the English. Amongst the middle classes the number of divorces for desertion is small, for the penalty is heavy on-the offend- ' ing spouse, as the innocent party is entitled to succeed at once as on death to his or her legal rights. Thus a Scottish woman who divorces her husband on either of the two legal grounds open to her obtains at once the - right to one-third of the income of the husband's landed estate, and one-third of his capital not invested in land (or one-half if there are no children). She is therefore provided for and, as the children are usually given into her custody; in such- cases she is entitled to a Maintenance (allOwnne:: for each of them. ' " With the last part of Mr. Haynea's- article I entirely disagree. • I cannot imagine anything more' unsatisfaetory than -the expedient to which the -Courts -in Holland - on his showing have become parties.- ' To permit divorce to take place on a mere statement by one sponse that ' the other has committed adultery, when no opposition is offered, is just to permit divorce by consent by means of a legal evasion. • Diiroice by consent has -been allowed - in' other countrieS—the United' StateS and -Norway are examples—tint the results are very far from-encouraging.
• It would in my-judgnie-nt be very injurious to general morality if-any but a very serious-breach of the contract implied in marriage were ever made a ground of divorce, although incurable insanity or the conviction of one spouse of serious' crime might well' be added- as grounds of divorce. To compel a person to continue -cohabitation with a criminal or to lead permanently a single life because the other • spouse is incapable of performing any matrimonial duty is in either Case wicked and non-eugenic and causes much misery to not a • few persons in ' both Countries for which 'under the present lavi there is no relief. FroM a Scots laWyer's standpoint marriage is just a consensual contract—but it is a contract for life and Only a grave breach of the duties that the contract implies will justify its rescission. Logieally, of course, a consensual contract may be terminated by mutual consent, but the law does not permit this in the- ease of marriage, as the whole fabric of civilized life depends on the main- tenance of the family, whose unity it is against public policy to impair.
EDW. T. SALVESEN.
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