Chapter 5

But it is just here that the religious objector to divorce-reform steps in. Marriage, he declares, is not only a social institution, it is a sacrament of the Church, "Those whom God has joined together no man may put asunder," _therefore divorce must be made as difficult as possible_. As I have said before, I can respect the view that rejects divorce and regards the marriage bond as indissoluble, but I can have nothing but contempt for this attitude of weak and shuffling compromise. Much has been said on the matter, therefore I say little. I shall not attempt to urge the causes for which divorce should, or should not, be granted; for, as will appear directly, I want a much simpler and more radical reform: also I hold it folly to try to convince the self-blinded. I only ask the reader to make sure that he (or perhaps more probably she) really believes that the partners in the marriages that come to the divorce courts _were joined by God_, and is willing to follow the argument to its logical conclusion. Are they willing, for instance, to say that a woman or a man may not put aside the marriage if one of the two is a lunatic, or a hopeless drunkard, or an habitual criminal, or a degenerate, or the victim of a disease which can be communicated to the offspring? Are they willing to go with our ecclesiastical advisers, who seek to maintain marriages, which may be the cause of perpetuating disease and crime; the bringing into the world of the children of drunkards, of epileptics, of syphilitics and of lunatics?

Stop a moment and think what this must mean to the society in which we live. Can it be considered seriously that the continuance of marriage in such cases as these can by any juggling be made right--anything except the most blind-eyed folly and sin?

III

Consider now the position to-day. Amazing marriages have been made under the urgency of war conditions, reckless marriages, entered into by those who have known each other for a few days only before marrying for life. A minister of religion stated quite recently, "I have had to marry many couples who admitted to me that they knew little about each other. I could do nothing. I was not allowed to refuse marriage."

There is no excuse now for these criminally hasty marriages; that they should have been made is one of the tragedies caused by war. It would prevent endless unhappiness and many divorces if marriages were to be made conditional, except under very special reasons, on the woman and the man having been engaged for a fixed and sufficiently long period. I would recommend this reform to all ecclesiastical opposers of divorce. Betrothal should be regarded as a much more important ceremony than is common with us: here again is a way in which we might wisely copy older civilizations, whose customs were more strictly planned to help men and women in right living.

In the first year of the war the number of cases heard in the divorce court rose from 289 to 520, which was the highest figure then on record. Last season the number had sprung up to 775, while on the present term's lists there are nearly 800 cases, showing the exceeding increase on the pre-war rate. A large percentage of the marriages which are dissolved by the court have been contracted since August, 1914. Petition after petition is filed praying for the dissolution of marriages which should never have been made. English law makes marriage far too easy. In addition to this alarming increase in divorce, a greater number of deeds of separation have been drawn up in the last two years than in any preceding twenty-five; cases of bigamy have also become very frequent, by women as well as by men.

A stage has now been reached when the cry for reform must be listened to. Something has got to be done. The unhappiness and failure in many marriages looms before us a colossal, an unprecedented and menacing fact. Our eyes cannot any longer remain shut to the damning proofs which confront us from so many sides.

IV

The question as to how our ridiculous and immoral system of divorce--(I really must use those terms)--was ever permitted to come into use may be answered very briefly. The Church ordained that marriage is indissoluble, but, this being found impossible in practice, the State stepped in with a way of escape--a kind of emergency exit. But what a makeshift it was! how flagrantly dishonest, how indecent! Adultery must be committed, and, in the case of the woman claiming relief, cruelty or desertion must be added to the adultery. To escape the degradation of an unworthy partner another partner must first be sought, home-life wrecked by the worst kind of conduct, and marriage degraded by an act of infidelity.

Now, this kind of thing is bad, and no possible shuffling can make it right; it is, indeed, so offensive to the feelings of most of us that it is very rarely, if ever, that the immoral and harmful way in which it acts is put into plain words.

The divorce law with its materialistic refusal to accept any grounds for divorce except physical infidelity, physical cruelty or desertion, makes for a low view of marriage. Further, it directly encourages perjury, in fact makes lying essential to obtaining the relief of the law. The law refuses to legalize divorce by the consenting desire of both parties--calls such a wise arrangement collusion; yet it cannot prevent what everyone knows is done in the great majority of decently conducted divorce suits, where desertion and infidelity take place by arrangement. The law is very lenient to those who can pay for the best arrangements for circumventing the law's intentions, but even in spite of the recent concessions, is still hard on the ignorant poor and low class. The law is a snob as well as a pedantic, pompous ass.

Some people may be disposed to believe that this very absurdity and unfairness of the law acts to prevent divorce. I tell you it does not; what it does do is to render decent and honest conduct quite impossible. I know this. I speak because the evil that is going on ought to be known. My own opposition to the law is not so much on account of the difficulty in obtaining a divorce--for it is not nearly so difficult as most people think; nor do I take exception, as is common with most women, to the unequal moral standard required from men and women; all this, as I have said, can easily be got over if you have money and a sufficiently clever lawyer. No, my passionate opposition is directed against the trickery and dishonesty made necessary by the law.

Let me prove this statement. To do so I will give brief details of four divorce suits which I think will speak more forcibly than any words of mine; in each case I know the facts I give are true.

_Case 1._--_A husband and wife, childless, desired to part, there was no physical infidelity on either side, but love had died. Both partners desired to remarry. The wife proved desertion against the husband (arranged between them beforehand by the help of a lawyer). She had to write and urgently entreat the man she desired to leave her to return! A decree for the restitution of conjugal rights was granted to her petition. Afterwards the husband had to commit adultery; (again arranged by the help of the lawyer.) He took the woman he wished to make his second wife for one night to an hotel. The decree_ nisi _was granted. Then there was the six months waiting for the decree to be made absolute. The King's Proctor made inquiries, it was found that the wife also desired her freedom; the divorce was refused on the ground of collusion. Four people were rendered desperately unhappy, compelled either to part or to live together without marriage. This, as was to be expected, they did, and children were born, of necessity illegitimately._

_Case 2._--_In this case the husband loved his wife, but she had been unfaithful to him and desired freedom to re-marry her lover. There were no children. Because it was better for her, this wronged husband arranged for his wife to divorce him, prove desertion and adultery. There was a slight difficulty because it was the wife who had run away from home. However, this was easily got over. The wife wrote begging the husband to allow her to come home, representing that he had sent her away. He then had to reply refusing her request, and while desiring nothing on earth so much as her return to him, had to state he would never live with her again. An act of adultery was then necessary, and as this good and chivalrous husband was also an exceptionally moral man, he took his sister to an hotel, and the divorce was granted on this: they, of course, signing their names in the hotel register as Mr. and Mrs. X._

_Case 3._--_In this case the action of the parties is reversed. The husband had committed adultery and wished his freedom to re-marry, but he held a public position, and to be the guilty party in a divorce suit meant social and financial ruin. The wife was innocent, and still loved her husband, but because she felt it right to free him, an act of adultery for her (not committed) was arranged. Both the decree_ nisi _and the decree absolute were granted. Complications arose from the fact that there were two children: as the "innocent" party custody was granted to the father, but he did not want the children. So for the six probationary months between the two decrees the children were placed with friends. Afterwards they were given back by the father to the mother._

When the decree of a divorce has been made absolute, you can fortunately do what you like. During the six months probationary period, however, the "innocent" partner (see Case 1) has to be so careful of his or her conduct, that it is really much more convenient to be the "guilty" partner. I mention this as a further proof of the absurdity of the law, and the immoral way in which it acts.

_Case 4._--_This case was even more curious than the three I have given. A very bad but beautiful woman had married a man younger than herself, an idealist, chivalrous, and quite unusually moral. After a few years of hell the marriage had to be ended. In kindness, and because she was a woman, the man said she had better divorce him. Desertion was proved, though it had not taken place. Trouble arose from the necessary act of adultery, as it was against the principles of the husband even to appear to commit it. The difficulty had, however, to be got over or the divorce given up. It was done in this way: the man got his married sister to go with her husband to an hotel, personating him and a woman, and signing the hotel book with his name as Mr. and Mrs. ----. Now the strange fact is that though there was no kind of similarity of appearance between the brother-in-law and the husband, one being very dark and the other very fair, one being short and the other tall, identity was established and sworn to by the servant in the hotel where the night had been spent. How this was arranged I do not know, but the decree_ nisi _and the decree absolute were granted without any difficulties arising._

Now, none of these cases are unusual, with the possible exception of No. 4; similar divorce suits are heard each session, only that the way in which the details have been arranged is carefully hidden, to prevent the losing of the case on a charge of collusion. _The one absolute barrier in this land to the breaking of a marriage is that both parties want it to be broken._

It is obvious, surely, without any further argument, that laws making perjury necessary, which demand the committing of acts of, often pretended, infidelity, are immoral; nor is their immorality lessened by the fact that through the rather heavy costs of these "arranged suits,"[99:1] only the richer and more fortunate classes, as a rule, are able to bring them.

I ask if this state of things is to be allowed to go on: are decent people to be driven by the law to make use of such vile trickery? I say "decent people" advisedly, for those who bring this kind of suit _are decent_, wishing to act honorably and kindly, and carrying out the always difficult severing of the marriage bond with as little pain as possible. There are, I know, other divorce suits in which vindictiveness and jealousy and anger are the ruling motives, but undefended and "arranged" suits, more or less on the lines of those I have given, are becoming more and more frequent. Each law session their number is increasing. Personally, I regard this as an extraordinarily healthy sign.

V

I hope I have now sufficiently proved that our unclean divorce laws can do nothing to preserve the sanctity of marriage. If we know the facts, to go on pretending that we believe this is to mark ourselves as hypocrites. We need to get rid of a system that is as immoral in theory as it is evil in practice.

But, unfortunately, the probability of the law being reformed does not depend on the need for reform. How many people are affected? What votes will the advocating of the reform gain? Grievances that will not gather noisy crowds will continue unheeded. Modern parliaments are like badly brought up children; they can be bribed with promises of votes or frightened with fear of disorder, more easily than led by reason.

VI

As soon as we begin to consider the reform of the law, we come at once to such a tangle of questions that I have the greatest difficulty in finding the right end to unwind the skein. For the trouble with this matter of our divorce laws, as with most other reforms, is to decide just what ought to be done, how far are we prepared to go? where must the marriage bond be held tight? where may it be loosened? These are but examples of the questions that have to be answered. Hence the wrangling and the failure in establishing any kind of united will, which prevents anything at all being done. No one, for instance, can decide the causes for which it would be right to extend the grounds of divorce. Almost every individual interested, and every group of individuals, appears to have a different opinion and offers opposing suggestions. And the issues are further confused because any change that concerns marriage touches us all so intimately, so that the attitude that we take up must be strongly affected by our deepest emotions, which against our knowledge are directed by our unconscious wills. This explains much apparently unwise conduct, as well as persistent opposition to reform on the part of many humane people, that otherwise would be difficult to understand. There is much too great a timidity shown even by those who recognize most the evil done by our existing laws and work for their reform. They fear to ask too much, always the sure way to get nothing done.

This question of the causes for which divorce should be allowed is one that is very unlikely to be settled. I doubt if it can be settled wisely. In my opinion, an enlightened reform of our law must go much further than the providing of ways of escape from marriage. Such exits tend to destroy the happy working of marriage and open a direct way to abuses; also they are unable to meet the needs of all classes, no matter how wide and numerous they are, while directly they are numerous they become ridiculous. They can never form the ultimate solution of what ought to be done. They tend to make marriage contemptible, and there are real grounds in the objections raised against them. There must be no special exits; the door of marriage must be left open to go out of as it is open to enter.

Nor do I believe there need be cause for fear in this idea of divorce by mutual consent. It is not nearly so easy to break a marriage that has lasted for any time as is usually thought by those who have never tried to do it. The habit of living together forges bonds you do not feel until you try to break them. The intimacy of marriage creates a thousand and one little every-day interests and ties, habits, preoccupations and memories in common; when they are torn it is like tearing thousands of little nerves that are far more painful than the one big hurt that caused them to be broken. That is why most marriages are dissolved through anger, in jealous passion, and because lovers are found out. It needs immense courage to sever a marriage if you have time to think what you are doing.

VII

About no subject, perhaps, are prejudices so rampant as they are about this question of changing the marriage laws. I am, however, very certain that I am right here. Nothing but good would follow from this introduction of plain simple honesty. There would be fewer divorces, and not more, if our laws were freed from their obsession with sexual offenses, and divorce was made a question of quiet and careful consideration, and mutual thought and decision.

There ought certainly to be a period of waiting after the application for divorce, which should be signed by both the partners of the marriage. I would suggest that the first application should be made to lapse of itself unless a further application for its enforcement was made after a period of--say, two years. Many people will go on with what they have begun, even if they don't want to do so, because they are not brave enough publicly to say they have made a mistake. After the second application a further period of waiting, not less than a year, might be required before the decree for dissolution of the marriage was made absolute.

I cannot understand how any honest mind can fail to see the advantages of this or some similar plan of divorce by mutual desire and arrangement, over the present law which forces the committal of perjury and requires adultery; nor can I find any reason why freedom should not be granted, when the marriage is childless and both partners, after sufficient deliberation, desire its dissolution. Probably it would be wiser, as a further necessary safeguard against too hasty parting, to require the marriage to have lasted for five years, before application for its dissolution could be made. I think, however, in urgent cases, and wherever it could be shown that the marriage had been entered into under a mistake and had been continuously unhappy, it should be possible to remit this requirement.

The case where one partner only of the marriage desires its dissolution is much more difficult, and cannot, I think, be settled with the same justice. I would, however, point out that the same situation is common before marriage, when an engagement is broken by one or other of the lovers, though, of course, the pain and injury (if such words can be used in this connection) must be much greater after marriage. The law allows in these cases compensation to be claimed by the injured partner for the harm suffered, and, though no one can uphold these breach of promise cases (which have increased so unfortunately in the war-period) it should be possible to avoid a similar sordidness. The establishment of right to compensation is not a new thing in divorce; used in the way I suggest it would serve as a safeguard against a too hasty escape from marriage, as well as being an act of justice for the partner who wished for the divorce to compensate, as fully as his or her means or working capacity permitted, the one who desired the continuance of the marriage.

The amount of compensation offered, as well as the amount claimed, if there was not an agreement between the partners, should be stated when application for the divorce is made; and this question should be settled before any further proceedings are allowed. The required periods of waiting would, of course, be enforced.

It may be interesting to my readers to learn that this principle of compensation, given by the partner who claims divorce to the one who does not desire it, is one that is common among many primitive peoples, especially wherever customs of maternal descent prevail.[106:1] It is practiced, to give one instance, by the Khasis, a maternal people of the hill tribes of East India; it affords an example of how much more wisely, because more simply, these matters are sometimes arranged, before civilization destroys our common sense.

VIII

So far, I have ignored the real difficulty of divorce--the child or children. At once the situation alters; when children are born both the practical needs and moral values are different. A marriage that becomes creative cannot be broken without grave disaster; for all creative things are eternal. What, then, must be done? Frankly, I know of no one workable plan, and I can suggest nothing except that in all cases the welfare of the children should be taken as the standard to which the desire of the parents should be subordinate.

You see, if we accept this standard of the child's good as the one thing of importance, we shall have great changes to make in our thought and in our action. I must follow this a little, though it takes me away from the main line of my argument, but I want to make quite plain the failure in our attitude. Perhaps on no other aspect of this question is greater nonsense talked than on this one of the effect of divorce on children. It is said so universally that it is better for the marriage to be broken than for children to live in a home in which the parents have ceased to love each other. I am not sure that this is true, the child's values are often very different from our adult values. Only just now I am reading "Joan and Peter," by Mr. Wells, and I am amazed at the levity with which he makes his characters treat this serious subject. You will remember the situation, almost at the opening of the book. Dolly, Peter's mother and the adopted-mother of Joan, has discovered that Arthur, her husband, has been unfaithful to their marriage. She is considering whether she will remain or will go to Africa with her cousin, Oswald Sydenham, who has for long loved her. These are the passages of which I wish to speak: "Then, least personal and selfish thought of all, was the question of Joan and Peter. What would happen to them?" Dolly goes over the details of the situation, her certainty that Arthur would allow her the custody of the children, then the passage ends with this remarkable statement: _Oswald would be as good a father as Arthur. The children weighed on neither side._ A little later Oswald speaks on the same matter of the children's future. Dolly has asked him, "But what of Peter and Joan?" He answers, _Leave them to nurses for a year or so, and then bring them out to the sun._

Now, to some people that sort of talk sounds all very well on paper, but as Mr. Wells and everyone ought to know, it is damnably different in practice. Shaw, Wells, Cannan, Beresford, and other writers have, in my opinion, done immense evil. They will present situations and treat them intellectually, without any honest facing of the facts. Children cannot be left for a few years and then picked up again like a bag or a trunk. The change of a father or a mother is a tremendous fact to a child, quite independent of whether the new parent is better or worse than the parent who has left. We know, as yet, very little of the results probable upon such a change, but we do know that confusion and jealousy are very likely to be stirred in the childish soul, and that these may work tremendous and lasting harm.