A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
[Footnote 327: HANSARD, _Parl. Debates_, 3d series, CXLII, 394
ff. See the suggestive paper of HIRSCHFELD, "The Law of Divorce
in England and in Germany," _Law Quart. Review_, XIII, 400-403,
giving illustrative passages from the debates relating to the
unfair treatment of the wife.]
[Footnote 328: HANSARD, _op. cit._, 3d series, CXLVII, 1545.]
In judicial practice, however, the terms "cruelty" and "desertion"
have acquired a rather broad meaning.[329] In particular through
the doctrine of "constructive" and "moral" cruelty there is a
"strong tendency to equalize the positions of the two" sexes.[330]
Nevertheless, the woman is still in a relatively unfavorable
position; and the sphere of divorce _a vinculo_ is exceedingly
narrow. There are doubtless many other causes besides infidelity
for which the welfare of society and the happiness of individuals
require that marriage may be dissolved. "It is a scandal to English
legislation," observes Lecky, that divorce "should not be granted
when one of the partners has been condemned for some grave criminal
offence involving a long period of imprisonment or penal servitude,
or for wilful and prolonged desertion, or for cruelty, however
atrocious, if it is not coupled with adultery. In all continental
legislations which admit divorce a catalogue of grave causes is
admitted which justify it."[331]
[Footnote 329: Thus adultery, if long persisted in, ripens
into "desertion." For a detailed discussion of "cruelty" and
"desertion" according to definition and judicial precedent, and
particularly on "constructive" and "moral" cruelty, see GEARY,
_op. cit._, 323 ff., 330 ff. _Cf._ BISHOP, _Marriage, Divorce,
and Separation_, I, §§ 1524 ff., especially 1532; HARRISON, _op.
cit._, 138 ff.]
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