Named in vain
THE LAW It. A. CLINE
Both Parliament and the press are at the moment much exercised about the division of matrimonial property when a divorce has occurred. But a more insidious problem, also arising out of divorce cases, is unlikely to find its way into the headlines or to be resolved by a Private Member's Bill. It touches on the deli- cate matter of publicity and the freedom of the press and the destruction of men's, or even more often women's, reputations.
In the last few months there have been at least two well-publicised divorce actions in which a woman 'named' by the petitioning wife has been dismissed from the action without any evidence worth the name (or worth the naming) being produced against her. Since divorce actions, like other lengthy investigations, have to be prepared in some detail, they hang like a cloud over the parties to the action. Charges and counter-charges lie frozen in their docu- mentary frigidaires until the day of the trial, when they are at last melted and tested.
But, in the meantime, reputations suffer. If the man cited as co-resbondent or his female equivalent, the woman named, is in the celeb- rity class, the whole country notionally suspends its judgment; in practice the average reader vaguely recollects that the celebrity was 'mixed up' in some divorce. If the co-respondent is no celebrity, the local press will enlighten his neigh- bours and he will become a local celebrity.
Now naming and citing people, innocent or guilty, calls for no complicated exercises in legal procedure. A wife decides to sue her hus- band for divorce. She tells her solicitor that he was a promiscuous man. She recounts his amor- ous affairs like Leporello in Don Giovanni. The evidence may consist of little more than her own assertion that her husband confessed to these acts of adultery plus some background circumstances which point equivocally to a position somewhere between familiarity and friendliness. Counsel is then brought in to draft the petition and it sets out in legal jargon allega- tions of adultery with various women, some of whom are shown at the trial to be truly guilty, others completely innocent.
Not so long ago the divorce rules of pro- cedure furnished a flimsy obstacle to random and unfounded allegations. The petitioner had to swear an affidavit in the baldest possible terms confirming the truth of what his or her lawyer had set out in the petition. But no one seemed to take the oath very seriously; it be- came a substitute for merely putting your signa- ture to your lawyer's creative writing. There were few prosecutions for perjury, so what was to stop a really vindictive petitioner from having a go, implicating the innocent and settling a few scores. The rules graciously recognised the ugly reality. The best way to preserve the sanctity of the oath is to abolish its use and so the affidavit procedure for this purpose was abolished.
Only one deterrent factor remained, that if a co-respondent or his female counterpart the woman named is improperly brought into a divorce action, the petitioner will be ordered to pay the costs of such involvement. But experi- ence shows that the cost factor is hardly present to the mind of a petitioner intent on bringing charges of adultery. And some cynically accept that the addition of a celebrated name to an otherwise banal list of alleged lovers must be paid for as the price of improving one's status. In. any case, the errant petitioner is never ordered to pay the whole of the costs.
Nor can the victim sue for malicious persecu- tion, a remedy available to the man who has been maliciously hauled before the criminal courts without any reasonable grounds. The lat- ter can claim damages in the civil courts and recover all his costs, 'thus putting the record straight. The policeman stands in greater danger from the people he prosecutes than the malici- ous divorce petitioner hell-bent on mudslinging.
The present divorce procedures put the repu- tations of completely innocent people in serious jeopardy. There being no smoke without fire, their participation in a scandal will be 'open to doubt' (to use the terminology of the Hochhuth dispute) for roughly twelve months. When they are dismissed from the suit, the judge will per- haps helpfully state that they leave the court without a stain on their character. The world knows differently. There are some stains that not even the most powerful judicial deter- gent can remove.
The remedies for this mischief are not difficult to devise. An obvious one, which would have the merit that the present legal procedttre need not be altered, is to prohibit the publicising of the names of co-respondents and women named until the judgment when their guilt or innocence is pronounced. This prohibition already applies with regard to the evidence itself (which cannot be reported except if repeated in the judge's judgment). But the anger of our fourth estate, the press, at any attempt to postpone, not bar, publication of anything in a court of law has re- cently been experienced in the case of magis- trates' committal proceedings. Our legislators would be bold indeed if they provoked the barons twice in the same Parliament.
The victim could be given the right to sue for damages for being joined in the divorce action maliciously and without reasonable grounds. But this will mean further litigation, further publicity and further expense. As a deterrent it would be a flop, deterring the victim from ever going to a court of law. Why not reverse a procedure now in common use to test the bona fides of defendants who put forward suspect defences? The petitioner could be required by a victim who believes himself innocent to set out his evidence in detail and on affidavit at the very outset of the proceedings when he first impli- cates his victim. The victim would set out his reply also on oath. The court could consider in chambers (as they do now in testing suspect de. fences) whether there was a bona fide case against the objecting co-respondent or woman named. If this can be done, there will be less smoke, no fire and no stains in the case of truly innocent persons, and an injustice which affects the humble as much as it does the celebrated will have been mitigated if not removed.
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