For the sake of argument

Grounds for divorce: two years apart

For the sake of argument

Grounds for divorce: two years apart


Grounds for divorce: two years apart

For the sake of argument


The opponents of change in our

divorce law normally base their arguments on three points. The first is that divorce is a new thing creeping into our Western society under materialistic, subversive and probably communistic influence; secondly, that divorce is of itself an evil; and finally, that the marriage contract should be indissoluble.

I propose to submit that the first point is wrong in fact, secondly that divorce is a positive good rather than an evil and finally that we should radically alter our divorce law by providing that two years' separation shall be grounds for divorce without any allegation of fault on the part of anyone.

What did Basil think?

Historically the laws and customs of the Western world, including the matrimonial laws, are an amalgam of the civil law of Rome and the customs of the Germanic tribes that overwhelmed the Western Empire. Christianity was accepted by the whole Roman Empire under Constantine in 313 A.D. and from that time on the emperors legislated "in the name of our Lord Jesus Christ.” The Roman law’ provided for divorce in a similar manner to the Hebrew law: that is, a bill of divorcement could be given and that bill dissolved the marriage without the intervention of courts.

In Kitchin’s history of divorce we find an examination of the views of the early fathers of the church during the next two centuries and this examination reveals that Justin Martyr. Tertullian, Origen, Chrysostom, Basil. Jerome, Epiphanius — all fathers of the early church — accepted divorce under the civil law without question, and St. Augustine accepted it on the ground of adultery. His definition of adultery, according to Lord Lyndhurst, included “any

unlawful desires or worldly views.” The adoption of this definition of adultery would broaden our divorce laws beyond anything I have ever heard suggested but I am afraid that anyone arguing for this definition before our Canadian courts would receive scant consideration.

When the Germanic tribes flooded over Europe and the Empire was submerged, questions of matrimonial status fell into the hands of the ecclesiastical courts. Pothier, the great French jurist, says that the church seized upon these matters as a source of revenue. In England we find that by the Penitentials of Theodore, Archbishop of Canterbury from 668 to 690, divorce was granted by mutual consent or on the ground of desertion, adultery, impotence, relationship. long absence and captivity.

The canon lawyers, however, were endeavoring to establish the doctrine of the indissolubility of marriage' and they finally did establish that doctrine but never at any time practiced it. Annulments could always be obtained through the ecclesiastical courts on the flimsiest of grounds. For instance, relationship within the seventh degree was held to be a bar to marriage. By the canon law seventh degree meant within seven generations. Since a couple would have over a thousand ancestors in that period it would be poor detective work that could not find one of those ancestors to be common to the two and therefore a ground for annulment of the marriage. Not content with that, however, the canon lawyers went further and said that if such ancestors were merely betrothed that this was a bar to the marriage and ground for annulment.

Napoleon obtained annulment of his marriage to Josephine on the allegation that he had withheld his continued on page 44

continued on page 44


For the sake of argument

continued from page 8

FC~2 today Lo sp~ o~

inward consent to that marriage, and he was able to cite the precedents of thirteen French kings who had obtained similar annulments. In our own time we have seen the Duchess of Marlborough (nee Vanderbilt) obtain an ecclesiastical annulment of her marriage to the Duke of Marlborough after twenty-six years and two children, on the ground that she had withheld her inward consent.

When the Church of England broke from Rome under Henry VIII the ecclesiastical doctrines as to annulment were largely swept away and the attempt of Cranmer, the Archbishop of Canterbury, to introduce a somewhat broader law of dissolution of marriage was blocked by the Commons, which did not want churchmen interfering in the civil law. This did not interfere with Henry’s marriage plans but it did with those of his subjects. For the next two hundred and fifty years in England divorce was very difficult to obtain, but it was obtainable by an elaborate procedure through the ecclesiastical courts, the common-law courts and a bill in parliament. In 1857 civil divorce was introduced in England on the ground of adultery and in 1937 the grounds were broadened to include cruelty, desertion, insanity and some others.

In other Western countries Dr. Kitchin points out that the development of the law was reasonably parallel to the English development. In the face of this evidence I submit that Western civilization has always had a means of revising matrimonial status and that the first proposition is inaccurate.

On the second point it is the fashion to speak of divorce as a disease. I submit it is rather a cure and I base this statement on nearly thirty years' practice at the bar of Ontario and hundreds of discussions of this matter with clients, fellow practitioners, judges and others.

Consider the average divorce case that comes before our courts. It is brought by a woman who is deserted by her husband, perhaps five years ago. and she has received little or no support in the meantime. At an early stage in the separation the husband has requested a divorce and has been refused. Three or four years later the wife changed her mind and decided to bring the action. It is proven that the husband and the woman named as corespondent are living together and have lived together for

years. One or both will frequently go into the witness box and make this admission. This is corroborated by the evidence of neighbors or relatives who have visited them and know they are living as man and wife. The judge, after listening to this for fifteen minutes to half an hour, wearily says, “There will be a decree nisi with costs against the male defendant." He has heard the tale so often that it is a pattern.

There are, of course, many other situations in which a divorce is asked, including the collusive situation where the parties have agreed to fake the evidence and perjure themselves in order to be free of an unwanted bond. But the situation I have outlined is a fair average. Under those circumstances is divorce an evil?

If we refuse to dissolve this marriage who benefits? The wife will presumably continue to live by herself and will from time to time summons her husband to family court, demanding support. In the average case there just is not enough

The Politician

Your statesman or your party hack May come from any walk of life If in his youth he learned the knack Of smiling as he whets a knife.

Of all careers from which we draw—Or so MPs have found it—

The best is training in the law,

The better to get round it.

Mavor Moore

money to go around and the judge of the family court does his best to divide up what there is. The net result is that three people live half a life, all of them mentally warped by hatred and frustration.

In that case we all lose, for these three are not taking their proper place in society and energies that might be directed to some socially useful purpose are being absorbed in petty wrangling. The social stigma that attaches to all three of them is such that they cannot take their place in clubs, societies or political organizations. What would happen to that man, for instance, if he were to run for alderman while living with a woman not his wife? The fact would have no bearing on his fitness for office but the hurdle would «be almost insuperable. This social hurdle, however, does not operate against the rich, for many of our well-to-do people have gone to the United States or Mexico and secured divorces and are now living with new partners. Few of these divorces would have legal standing in this country, but socially they are accepted.

The fact that we allow divorce at all for any reason means that society has accepted the view that a certain percentage of marriages have not been successful and should be dissolved. The grounds, however, are purely physical; that is, divorce is granted in Canada— excepting Nova Scotia—only for adultery and the normal ground for annulment is impotence, which means inability to have sexual intercourse. It is taking a rather low view of the objects of marriage to say that sexual intercourse is the one thing that matters.

Three hundred years ago John Milton argued in his Doctrine and Discipline of Divorce that divorce by mutual consent was more consistent with the spirit of Christianity. He argued that no court was capable of enquiring into “the secret reason of dissatisfaction between man and wife" and that any enquiries into these things unnecessarily aggravated the sufferings of the parties. He concluded by submitting that marriage would gain in honor when both were able to obtain a divorce where affection has ceased to exist.

In this he was merely echoing the civil law of Rome, which the historian Bryce summed up as follows: “Compulsion of any form is utterly opposed to

a connection which springs from free choice and is sustained by affection only. To compel an unwilling party to remain married was as unthinkable to the Romans as to compel an unwilling party to enter into marriage," and he quoted from one of the laws of Justin: “If marriages are made by mutual affection it is only right that when that affection no longer exists they should be dissoluble by iTiUtual consent.”

Bryce also stated that to pass from the civil law of Rome to the ecclesiastical law of the Middle Ages is like quitting an open country intersected by good roads for a tract of mountain and forest where a rough and tortuous path furnishes the only means of transit.

The law as administered by the ecclesiastical courts in the Middle Ages, which has descended to us through those courts, is based on the views of the early fathers of the church with regard to marriage, commencing with St. Paul's dictum: "It is better to marry than to burn.” From the same source we have the statement that marriage is for such that have not the gift of continence, and it is apparent in his view that celibacy is the highest state of man. There are countless acts and statements by the early Christian fathers that support this view. Origen castrated himself. Augustine deplored equally his marriage and his experience of concubinage and Jerome stated that a widow who married again was “a dog returning to its vomit and a washed sow to its wallowing place.”

The only way to characterize people who hold those views is as fanatics, but it is these very fanatics who have set their seal upon our laws today, for it was their views that were imposed b the medieval church in place of the broad charity of Roman law.

Views such as these stem not from charity but from hatred—hatred of the human race, hatred of life and hatred of oneself. Our law today is similar to the English law prior to 1937 and the late Mr. Justice McCardie had this to say about such a law:

It is supposed to uphold decency but it outrages every principle of decency. Those who defend it talk of sacrament but those who have to enforce it are reminded of the sewer. It is intended, we are told, to preserve the distinc-

tion between the mating of animals and human love which has a spiritual and intellectual splendor denied to the brute beasts; but by insisting that the physical act of love is the one foundation of marriage it makes us one with the beasts. It is illogical. It is cruel. It is barbarous. It is disgusting.

The third point commonly advanced by supporters of our divorce laws is that we should make marriage indissoluble. This is a view that has come to us through the medieval church, which gradually closed the front door of divorce while at the same time it was opening the back door of annulment, as I pointed out initially. I submit that a course such as this is sheer dishonesty.

The opinions supporting such a view come either directly or indirectly through the medieval church and are based on the texts I have quoted. This therefore is an attempt by the churchmen to impose their law upon all of us. In Ontario the law of England was introduced is of 1792 and we have the high authority of the House of Lords for saying that the Christian religion is not and never has been part of the law of England. To say that the sacrament of marriage is indissoluble is a matter of religious belief. Those who hold that belief are quite entitled to do so and to them it is indissoluble. It is when they attempt to impose that belief upon others that 1 take issue with them. In theory we are all equal before the law, whether Jew or Moslem or agnostic or Christian.

I submit therefore that we should completely disregard any religious view and base our laws solely upon humanity, having due regard for the interest of society as a whole.

It is difficult for a practicing lawyer tor give specific cases without a breach of confidence, but I can safely say that i have hundreds of times advised people who have come to me, complaining of beatings, drunkenness, nagging, sloppiness, desertion and cruelty on the part of their partners, that they have no effective rights in law. I have advised them that they may separate, but in the normal case there is not money enough for two homes. If they do separate they are second-class citizens and not functioning effectively in our society.

When I have tried to get to the bottom of things, to see what is the real cause of the breakdown of the marriage, I have normally come to the conclusion either that both were at fault or that neither were. In a surprising number of cases it has appeared either that these people should never have married in the first place or. alternatively, that they have grown apart. I here is bitter truth in the statement of the American wit who said that Washington is filled with famous men and the women they married when they were young. An English royal commission, reporting about a year ago, broke down divorces under age groupings, and it was found that by far the largest group came from the teenage marriages In other words, the younger you are the more likely you are to make a mistake.

Lord Walker, a member of the royal commission, put his finger on another aspect with which I respectfully agree, when he said, “The commission of a matrimonial offense is often the symptom or sequel of a marriage which has broken down for quite other reasons; and in such cases the party morally responsible for the breakdown is sometimes under the existing law permitted to masquerade as the legally innocent party.” It is my belief that it is impos-

sible to find the real causes of the breakdown and it is on this basis that I suggest that our law should abolish all other causes of divorce and provide merely that divorce could be granted on the application of either party after two years’ separation.

This is very similar to the present law of New Zealand, and in explaining that law before the royal commission Mr. Justice Findlay stated, “This proceeded upon the footing that the marriage should be permanent; but we then went a step further and brought into the scale the

fact that marriages which were marriages in name only were cruel to the individual and against the public interest . . . The conclusion was reached that if a marriage had failed and the failure had endured for three years that was a firm assurance that it was never likely to be any use as a marriage.”

This is going back to the civil law of Rome, which said. “If the parties are not living together the marriage cannot be said to exist.”

If we were to deal with this matter scientifically we would define our object,

find the facts and then devise a method by which the object might be reached. I submit that our object should be to permit the maximum of happiness and freedom to the individual so long as society as a whole is not harmed. On the facts I submit that our present law creates a crop of second-grade citizens who cannot develop their full potentialities and we are all the losers thereby. For method I would like to go back to the civil law of Rome, which in this respect at least can be called civilized while ours is barbarous. ★