Anomalies of the English lawChester, S. Beach (Samuel Beach)
History
Anomalies of the English law
Chester, S. Beach (Samuel Beach)
Law; Law -- Great Britain -- History
“There was much to object to in the procedure of the Divorce Court.
He had heard no particular reason why pleadings in the Divorce Court
should be sworn to, but if it was agreed that people were thereby
debarred from launching baseless charges there was something to be
said for it. It ought not to be necessary to swear a jury where the
damages were agreed. The practice by which a wife could accuse a
woman of adultery and the Court could find her guilty without the
woman having notice of the proceedings or an opportunity of being
heard was indefensible. He thought only the decrees of the Court
with the names of the parties should be published. The suggestion
that publicity was a deterrent was open to a good deal of doubt. It
was a great hardship for a man or woman that all the details of an
unsuccessful charge of adultery should be published. Even though
acquitted, the damage done was irremediable. There was a growing
tendency on the part of certain newspapers to treat the Divorce Court
as the fountain head of sensational news.
“In considering legislation he refused to have regard to the
religious views of particular sects. He admitted marriage to be a
contract which affected not only the two parties to it, but the
community, and he considered that the community was bound to have
regard to the moral tendency of the marriage and divorce law and to
the interests of the children. Such expressions as ‘the sanctity
of marriage’ and “the sanctity of the home,” often used in this
connection, he regarded as having no particular meaning in the case
of adulterous homes or establishments where husband and wife had
long been separated. He suggested, therefore, that the test which
should be applied was whether any of the attributes of marriage
were still in existence between husband and wife. Where the spouses
had been separated for a term of years; where children had already
made their home with one or the other; and where no element of the
marriage tie remained except some financial relations and the legal
bond, he suggested that the law should step in, and, recognizing
the existing state of things, should sever the legal bond and
leave the parties free to create new homes. Since the decision of
“Jackson _v._ Jackson” the wife might leave her husband at the church
door, and unless one or other of the parties took advantage of the
privileges which the law reserved for adulterers, they would both
remain compulsory celibates for the rest of their lives. He still
thought the ideal state of the law would be that set out in the Bill
he presented to the House of Lords in 1902. English legislation,
however, always proceeded by piecemeal tentative advances, and
probably, therefore, the simplest form of legislation would involve
four advances:--(_a_) Equality of the sexes; (_b_) insanity a ground
of separation; (_c_) all judicial separation to be capable of being
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