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The Poor Man's Divorce
Transcribed from
The North-China Herald
4 September 1909
[ refers to domestic law, rather than to British residents in China or elsewhere,
except for a brief comment at the end
and the item concerning a Court action in Hong Kong ]
September 3, 1909.
Few social questions are surrounded with greater difficulty than that of divorce. The progression of civilization has forced upon society the consideration of this most important question, and different conclusions have been arrived at in various countries. In modern times the history of divorce has been the gradual decay of the restrictions which were thought appropriate to the religious character of the institution of marriage, but at the same time these restrictions have nowhere disappeared. It is but natural that, as the environment of individuals, sections of communities and nations vary, so the opinion of society fluctuates between the belief that marriage is a civil contract only, and the belief that it is a contract of a peculiarly sacred character, the dissolution of which must not lightly, if at all, be permitted by human legislation.
In all civilized countries we find laws restricting the dissolution of the marriage tie. But there is a certain amount of inconsistency in legislation about divorce, and this is in no system more remarkable than in the English, founded as it is on the doctrines of the canon law, modified by the opinions of secular Judges, and altered by Acts of Parliament.
Since we emerged from the Middle Ages, divorce has been accepted in principle by both Houses of Parliament and there were many private Acts passed up to the year 1858. Originally if a person wished to obtain a divorce in England, three suits had to be brought – ecclesiastical, civil and parliamentary. In such circumstances divorce became a remedy for the rich; the poor, we are told, were driven to bigamy.
A Commission was appointed in 1850 with a view to the adoption of remedial measures, and the recommendations made included the establishment of a regular Court for divorce. Bills constructed on the principles laid down by the Commission were introduced into Parliament and successively abandoned or lost, until in 1857 the Ministry of the day, by great exertions, carried the Bill which is now the Act of twenty and twenty-one Victoria c. eighty-five. Notwithstanding the hostility it excited, the Bill proposed little more than a consolidation of jurisdictions; and proceedings in the Divorce Court have now, with few exceptions, the same object and result as the former proceedings in Parliament and in the civil and ecclesiastical Courts. Full divorce is granted on the principles usually recognized by the House of Lords; and the other remedies are such as might formerly have been granted by the ecclesiastical Court.
This Act, however, has not made it possible for the poorer classes to obtain divorce. In an undefended case the costs amount from £40 to £60, while in other cases they may amount to hundreds of pounds. The argument is sometimes advanced that the process of in forma pauperis should be followed where the petitioner is unable to pay, but in such a case only the Court fees, from £6 to £8, would be saved. Moreover members of the artisan and labouring classes are unable to give the time necessary to travel to London, even if they can find sufficient money to institute proceedings. Bigamy and other outrages against society have been the result of this defect in procedure only too often; consequently, for years it has been felt in many quarters that it was due to society that there should be some amelioration of the conditions appertaining to the process of divorce. But a champion of the poorer classes has been lacking.
Lord Gorell, who as President of the Divorce Court, has had long experience of the subject, has at last been impelled, by years of watching this class of case, to come to a conclusion about it which he felt it to be his duty to lay before the House of Lords. He has, therefore, brought the matter prominently before the nation by moving the following motion: "That it is expedient that jurisdiction to a limited extent in divorce and matrimonial cases should be conferred upon County Courts, in order that the poorer classes may have their cases of that nature heard and determined in such Courts."
The motion was confined to the matter of procedure, and its object was to bring the reform effected by the Statute of 1857 within the reach of those who at present cannot afford the cost of proceedings in the High Court. The grounds upon which Lord Gorell thought it desirable to bring forward this motion were two – first, that poor people might be able to assert the rights that they saw other people enjoying but which they could not afford to claim; and, secondly, because long experience had forced upon him the conviction that the present state of affairs was adverse to the best interests of public morality. The question of the principle of dissolution of marriage was not involved, as it was threshed out fifty years ago. What Lord Gorell asked the House was whether a large portion of the community should be left to see that the facilities given bye-law were out of their reach while within the reach of persons who had more means.
Lord Gorell had no revolutionary proposals to make. He took the law as it is and showed that it was so administered as to give to the rich what it denied to the poor; it debarred the poor from divorces and gave them facilities for judicial separations, with results often very detrimental to morality. The Archbishop of Canterbury argued that separations had not the evil effects attributed to them, but both Lord Gorell and Mr. Plowden, the metropolitan police magistrate, are convinced that the results are evil. Mr. Plowden, in a letter to "The Times," went so far as to say that there was a "crying need for the benefits of divorce which are withheld from the poor. ... Separation may bring relief at the moment but no real solatium for many a woman's wrongs, which can only be healed by divorce." In the debate in the Upper House, Lord Halifax suggested an inquiry into the matter, and, on the Lord Chancellor's promising to consult his colleagues as to the desirability of an inquiry, Lord Gorell withdrew his motion by leave.
There is much to be said in favour of an investigation conducted within well-defined lines. It is evident that neither Mr. Gladstone nor Sir Richard Bethell, the chief combatants in the memorable struggle over the measure of 1857, foresaw some of its chief consequences, and they certainly could not have anticipated the facilities now given for judicial separation. An inquiry such as that proposed would not be complete, therefore, without consideration of the question of the granting of judicial separations.
Other questions will suggest themselves; for example, the effects of the system that has been at work since 1857 – the direct and indirect social effects; what are the classes that avail themselves of the Divorce Court and who are shut out of it; the extent of collusion in obtaining the decree which both parties desire; and the publication of newspaper reports of divorce cases. To use the words of the Archbishop of Canterbury, it is simply impossible to exaggerate the importance of such questions as these in their direct and indirect bearing upon the home life of great sections of the people of the country.
We cannot hope that the question of giving power to British Courts abroad to hear petitions for divorce will be embodied in those to be considered at the inquiry, as many difficult questions outside the scope of the inquiry would arise. But a glaring instance of the hardship inflicted on British residents abroad owing to Courts not having power to deal with divorce cases is to be found in an action for damages now being tried in the Supreme Court at Hongkong.
[see below]
Item from The North-China Herald, 18 September 1909,
in the section reporting news from Hong Kong:
SEQUEL TO A DIVORCE.
A very unusual case has occupied the Chief Justice and a jury for several days. It was an action in which Captain T. A. Mitchell of the Indo-China Steam Navigation Company proceeded against John Lemm to recover $15,000 general moral damages and $17,187.23 special damages for money paid and payable in connexion with divorce proceedings in Edinburgh. The jury unanimously found for the plaintiff and assessed the general damages at $7,500 and his Lordship said he would consider the special damages in Chambers. A stay of execution was granted for a fortnight in order that counsel for the defendant might consider a question of law with a view to appeal.
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