Divorce

The time is fast approaching when it will be necessary for the general
citizen to form definite opinions upon proposals for probably quite
extensive alterations of our present divorce laws, arising out of the
recommendations of the recent Royal Commission on the subject. It may
not be out of place, therefore, to run through some of the chief points
that are likely to be raised, and to set out the main considerations
affecting these issues.

Divorce is not one of those things that stand alone, and neither divorce
law nor the general principles of divorce are to be discussed without a
reference to antecedent arrangements. Divorce is a sequel to marriage,
and a change in the divorce law is essentially a change in the marriage
law. There was a time in this country when our marriage was a
practically divorceless bond, soluble only under extraordinary
circumstances by people in situations of exceptional advantage for doing
so. Now it is a bond under conditions, and in the event of the adultery
of the wife, or of the adultery plus cruelty or plus desertion of the
husband, and of one or two other rarer and more dreadful offences, it
can be broken at the instance of the aggrieved party. A change in the
divorce law is a change in the dissolution clauses, so to speak, of the
contract for the marriage partnership. It is a change in the marriage
law.

A great number of people object to divorce under any circumstances
whatever. This is the case with the orthodox Catholic and with the
orthodox Positivist. And many religious and orthodox people carry their
assertion of the indissolubility of marriage to the grave; they demand
that the widow or widower shall remain unmarried, faithful to the vows
made at the altar until death comes to the release of the lonely
survivor also. Re-marriage is regarded by such people as a posthumous
bigamy. There is certainly a very strong and logical case to be made out
for a marriage bond that is indissoluble even by death. It banishes
step-parents from the world. It confers a dignity of tragic
inevitability upon the association of husband and wife, and makes a love
approach the gravest, most momentous thing in life. It banishes for ever
any dream of escape from the presence and service of either party, or of
any separation from the children of the union. It affords no alternative
to "making the best of it" for either husband or wife; they have taken a
step as irrevocable as suicide. And some logical minds would even go
further, and have no law as between the members of a family, no rights,
no private property within that limit. The family would be the social
unit and the father its public representative, and though the law might
intervene if he murdered or ill-used wife or children, or they him, it
would do so in just the same spirit that it might prevent him from
self-mutilation or attempted suicide, for the good of the State simply,
and not to defend any supposed independence of the injured member. There
is much, I assert, to be said for such a complete shutting up of the
family from the interference of the law, and not the least among these
reasons is the entire harmony of such a view with the passionate
instincts of the natural man and woman in these matters. All
unsophisticated human beings appear disposed to a fierce proprietorship
in their children and their sexual partners, and in no respect is the
ordinary mortal so easily induced to vehemence and violence.

For my own part, I do not think the maintenance of a marriage that is
indissoluble, that precludes the survivor from re-marriage, that gives
neither party an external refuge from the misbehaviour of the other, and
makes the children the absolute property of their parents until they
grow up, would cause any very general unhappiness Most people are
reasonable enough, good-tempered enough, and adaptable enough to shake
down even in a grip so rigid, and I would even go further and say that
its very rigidity, the entire absence of any way out at all, would
oblige innumerable people to accommodate themselves to its conditions
and make a working success of unions that, under laxer conditions, would
be almost certainly dissolved. We should have more people of what I may
call the "broken-in" type than an easier release would create, but to
many thinkers the spectacle of a human being thoroughly "broken-in" is
in itself extremely satisfactory. A few more crimes of desperation
perhaps might occur, to balance against an almost universal effort to
achieve contentment and reconciliation. We should hear more of the
"natural law" permitting murder by the jealous husband or by the jealous
wife, and the traffic in poisons would need a sedulous attention--but
even there the impossibility of re-marriage would operate to restrain
the impatient. On the whole, I can imagine the world rubbing along very
well with marriage as unaccommodating as a perfected steel trap.
Exceptional people might suffer or sin wildly--to the general amusement
or indignation.

But when once we part from the idea of such a rigid and eternal
marriage bond--and the law of every civilised country and the general
thought and sentiment everywhere have long since done so--then the whole
question changes. If marriage is not so absolutely sacred a bond, if it
is not an eternal bond, but a bond we may break on this account or that,
then at once we put the question on a different footing. If we may
terminate it for adultery or cruelty, or any cause whatever, if we may
suspend the intimacy of husband and wife by separation orders and the
like, if we recognise their separate property and interfere between them
and their children to ensure the health and education of the latter,
then we open at once the whole question of a terminating agreement.
Marriage ceases to be an unlimited union and becomes a definite
contract. We raise the whole question of "What are the limits in
marriage, and how and when may a marriage terminate?"

Now, many answers are being given to that question at the present time.
We may take as the extremest opposite to the eternal marriage idea the
proposal of Mr. Bernard Shaw, that marriage should be terminable at the
instance of either party. You would give due and public notice that your
marriage was at an end, and it would be at an end. This is marriage at
its minimum, as the eternal indissoluble marriage is marriage at its
maximum, and the only conceivable next step would be to have a marriage
makeable by the oral declaration of both parties and terminable by the
oral declaration of either, which would be, indeed, no marriage at all,
but an encounter. You might marry a dozen times in that way in a day....
Somewhere between these extremes lies the marriage law of a civilised
state. Let us, rather than working down from the eternal marriage of
the religious idealists, work up from Mr. Shaw. The former course is,
perhaps, inevitable for the legislator, but the latter is much more
convenient for our discussion.

Now, the idea of a divorce so easy and wilful as Mr. Shaw proposes
arises naturally out of an exclusive consideration of what I may call
the amorous sentimentalities of marriage. If you regard marriage as
merely the union of two people in love, then, clearly, it is
intolerable, an outrage upon human dignity, that they should remain
intimately united when either ceases to love. And in that world of Mr.
Shaw's dreams, in which everybody is to have an equal income and nobody
is to have children, in that culminating conversazione of humanity, his
marriage law will, no doubt, work with the most admirable results. But
if we make a step towards reality and consider a world in which incomes
are unequal, and economic difficulties abound--for the present we will
ignore the complication of offspring--we at once find it necessary to
modify the first fine simplicity of divorce at either partner's request.
Marriage is almost always a serious economic disturbance for both man
and woman: work has to be given up and rearranged, resources have to be
pooled; only in the rarest cases does it escape becoming an indefinite
business partnership. Accordingly, the withdrawal of one partner raises
at once all sorts of questions of financial adjustment, compensation for
physical, mental, and moral damage, division of furniture and effects
and so forth. No doubt a very large part of this could be met if there
existed some sort of marriage settlement providing for the dissolution
of the partnership. Otherwise the petitioner for a Shaw-esque divorce
must be prepared for the most exhaustive and penetrating examination
before, say, a court of three assessors--representing severally the
husband, the wife, and justice--to determine the distribution of the
separation. This point, however, leads me to note in passing the need
that does exist even to-day for a more precise business supplement to
marriage as we know it in England and America. I think there ought to be
a very definite and elaborate treaty of partnership drawn up by an
impartial private tribunal for every couple that marries, providing for
most of the eventualities of life, taking cognizance of the earning
power, the property and prospects of either party, insisting upon due
insurances, ensuring private incomes for each partner, securing the
welfare of the children, and laying down equitable conditions in the
event of a divorce or separation. Such a treaty ought to be a necessary
prelude to the issue of a licence to marry. And given such a basis to go
upon, then I see no reason why, in the case of couples who remain
childless for five or six years, let us say, and seem likely to remain
childless, the Shaw-esque divorce at the instance of either party,
without reason assigned, should not be a very excellent thing indeed.

And I take up this position because I believe in the family as the
justification of marriage. Marriage to me is no mystical and eternal
union, but a practical affair, to be judged as all practical things are
judged--by its returns in happiness and human welfare. And directly we
pass from the mists and glamours of amorous passion to the warm
realities of the nursery, we pass into a new system of considerations
altogether. We are no longer considering A. in relation to Mrs. A., but
A. and Mrs. A. in relation to an indefinite number of little A.'s, who
are the very life of the State in which they live. Into the case of Mr.
A. _v_. Mrs. A. come Master A. and Miss A. intervening. They have the
strongest claim against both their parents for love, shelter and
upbringing, and the legislator and statesman, concerned as he is chiefly
with the future of the community, has the strongest reasons for seeing
that they get these things, even at the price of considerable vexation,
boredom or indignity to Mr. and Mrs. A. And here it is that there arises
the rational case against free and frequent divorce and the general
unsettlement and fluctuation of homes that would ensue.

At this point we come to the verge of a jungle of questions that would
demand a whole book for anything like a complete answer. Let us try as
swiftly and simply as possible to form a general idea at least of the
way through. Remember that we are working upward from Mr. Shaw's
question of "Why not separate at the choice of either party?" We have
got thus far, that no two people who do not love each other should be
compelled to live together, except where the welfare of their children
comes in to override their desire to separate, and now we have to
consider what may or may not be for the welfare of the children. Mr.
Shaw, following the late Samuel Butler, meets this difficulty by the
most extravagant abuse of parents. He would have us believe that the
worst enemies a child can have are its mother and father, and that the
only civilised path to citizenship is by the incubator, the cr�che, and
the mixed school and college. In these matters he is not only ignorant,
but unfeeling and unsympathetic, extraordinarily so in view of his great
capacity for pity and sweetness in other directions and of his indignant
hatred of cruelty and unfairness, and it is not necessary to waste time
in discussing what the common experience confutes Neither is it
necessary to fly to the other extreme, and indulge in preposterous
sentimentalities about the magic of fatherhood and a mother's love.
These are not magic and unlimited things, but touchingly qualified and
human things. The temperate truth of the matter is that in most parents
there are great stores of pride, interest, natural sympathy, passionate
love and devotion which can be tapped in the interests of the children
and the social future, and that it is the mere commonsense of statecraft
to use their resources to the utmost. It does not follow that every
parent contains these reservoirs, and that a continual close association
with the parents is always beneficial to children. If it did, we should
have to prosecute everyone who employed a governess or sent away a
little boy to a preparatory school. And our real task is to establish a
test that will gauge the desirability and benefit of a parent's
continued parentage. There are certainly parents and homes from which
the children might be taken with infinite benefit to themselves and to
society, and whose union it is ridiculous to save from the divorce court
shears.

Suppose, now, we made the willingness of a parent to give up his or her
children the measure of his beneficialness to them. There is no reason
why we should restrict divorce only to the relation of husband and wife.
Let us broaden the word and make it conceivable for a husband or wife to
divorce not only the partner, but the children. Then it might be
possible to meet the demands of the Shaw-esque extremist up to the point
of permitting a married parent, who desired freedom, to petition for a
divorce, not from his or her partner simply, but from his or her
family, and even for a widow or widower to divorce a family. Then would
come the task of the assessors. They would make arrangements for the
dissolution of the relationship, erring from justice rather in the
direction of liberality towards the divorced group, they would determine
contributions, exact securities appoint trustees and guardians.... On
the whole, I do not see why such a system should not work very well. It
would break up many loveless homes, quarrelling and bickering homes, and
give a safety-valve for that hate which is the sinister shadow of love.
I do not think it would separate one child from one parent who was
really worthy of its possession.

So far I have discussed only the possibility of divorce without
offences, the sort of divorce that arises out of estrangement and
incompatibilities. But divorce, as it is known in most Christian
countries, has a punitive element, and is obtained through the failure
of one of the parties to observe the conditions of the bond and the
determination of the other to exact suffering. Divorce as it exists at
present is not a readjustment but a revenge. It is the nasty exposure of
a private wrong. In England a husband may divorce his wife for a single
act of infidelity, and there can be little doubt that we are on the eve
of an equalisation of the law in this respect. I will confess I consider
this an extreme concession to the passion of jealousy, and one likely to
tear off the roof from many a family of innocent children. Only
infidelity leading to supposititious children in the case of the wife,
or infidelity obstinately and offensively persisted in or endangering
health in the case of the husband, really injure the home sufficiently
to justify a divorce on the assumptions of our present argument. If we
are going to make the welfare of the children our criterion in these
matters, then our divorce law does in this direction already go too far.
A husband or wife may do far more injury to the home by constantly
neglecting it for the companionship of some outside person with whom no
"matrimonial offence" is ever committed. Of course, if our divorce law
exists mainly for the gratification of the fiercer sexual resentments,
well and good, but if that is so, let us abandon our pretence that
marriage is an institution for the establishment and protection of
homes. And while on the one hand existing divorce laws appear to be
obsessed by sexual offences, other things of far more evil effect upon
the home go without a remedy. There are, for example, desertion,
domestic neglect, cruelty to the children drunkenness or harmful
drug-taking, indecency of living and uncontrollable extravagance. I
cannot conceive how any logical mind, having once admitted the principle
of divorce, can hesitate at making these entirely home-wrecking things
the basis of effective pleas. But in another direction, some strain of
sentimentality in my nature makes me hesitate to go with the great
majority of divorce law reformers. I cannot bring myself to agree that
either a long term of imprisonment or the misfortune of insanity should
in itself justify a divorce. I admit the social convenience, but I wince
at the thought of those tragic returns of the dispossessed. So far as
insanity goes, I perceive that the cruelty of the law would but endorse
the cruelty of nature. But I do not like men to endorse the cruelty of
nature.

And, of course, there is no decent-minded person nowadays but wants to
put an end to that ugly blot upon our civilisation, the publication of
whatever is most spicy and painful in divorce court proceedings. It is
an outrage which falls even more heavily on the innocent than on the
guilty, and which has deterred hundreds of shy and delicate-minded
people from seeking legal remedies for nearly intolerable wrongs. The
sort of person who goes willingly to the divorce court to-day is the
sort of person who would love a screaming quarrel in a crowded street.
The emotional breach of the marriage bond is as private an affair as its
consummation, and it would be nearly as righteous to subject young
couples about to marry to a blustering cross-examination by some
underbred bully of a barrister upon their motives, and then to publish
whatever chance phrases in their answers appeared to be amusing in the
press, as it is to publish contemporary divorce proceedings. The thing
is a nastiness, a stream of social contagion and an extreme cruelty, and
there can be no doubt that whatever other result this British Royal
Commission may have, there at least will be many sweeping alterations.