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
The act of 1857 directs that, before granting a decree, the court
shall "satisfy itself, so far as it reasonably can, not only as to
the facts alleged," but also whether there has been any collusion
between the petitioner and either of the respondents, or whether
there is any bar or counter-charge against the petitioner.[333]
But no special procedure was created for making the inquiry
suggested, "nor could a stranger without any legal private interest
intervene."[334] The necessary machinery for that purpose was
provided by the Matrimonial Causes Act[335] of 1860, which rests
upon the theory "that the public is interested in seeing that
no marriage is dissolved except on certain grounds."[336] Two
distinct stages in the proceedings for a dissolution of wedlock are
prescribed. If a sentence of divorce be rendered, it must always
in the first instance be a decree _nisi_. Only after an interval
of six months, unless a shorter time be set by the court, can such
a decree be made _absolute_. In the meantime, the queen's proctor,
or any member of the public, whether interested in the suit or not,
may "intervene" to show collusion or the suppression of material
facts;[337] and in case of such intervention the court shall deal
with the cause "by making the decree absolute, or by reversing the
decree _nisi_," or by conducting further examination, as "justice
may require."
[Footnote 333: 20 and 21 Vict., c. 82, secs. 29-31: _Statutes at
Large_, XCVII, 538.]
[Footnote 334: So decided in Y. _v._ Y. (1860): 1 SWABEY AND
TRISTRAM, _Reports_, 598-600; GEARY, _op. cit._, 249, 261.]
[Footnote 335: 23 and 24 Vict., c. 144. For the discussion of
the bill see HANSARD, _Parl. Debates_, 3d series, CLX, 1628-31,
1734-42. _Cf._ also GLASSON, _Le mariage civil et le divorce_,
322 ff.; GEARY, _op. cit._, 261 n. 6; HARRISON, _The Laws of
Probate and Divorce_, 141 ff.]
[Footnote 336: Lord Hannen, in the celebrated case of Crawford
_v._ Crawford (1886), 11 P. D., 150-58, where the queen's proctor
is allowed to intervene to prove a previous decision unjust.
See also GEARY, _op. cit._, 257 n. 2, 262, where this case is
summarized.]
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