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mode of obtaining them in this way was, however, so expensive that few could afford it, and the exercise of the law became exclusively the privilege of the rich. It was necessary, first, to obtain in an Ecclesiastical Court a divorce a mensa et thoro. Secondly, except in a few cases, to recover substantial damages in a Court of law, in an action for Crim. Con.; and thirdly, to have a statute passed by the legislature granting the divorce--a vinculo.2 Three distinct tribunals had to be resorted toman Ecclesiastical Court, a law Court, and the Imperial Parliament-each repetition of the first proceeding was as expensive as it was dilatory and humiliating, and became fruitful in vice and suffering: and the last, although in form legislative, was, in truth, merely judicial-governed by rules and regulated by precedent, so that the result could be foreseen with as much certainty as if the question were determinable by an action in law, or a suit in equity. The expense, delay, and increased humiliation, caused by these repeated terrible exposures, called for that interposition of the legislature, which has resulted in the passing of the recent statute:—the subject of the present commentary.
11. It is only to be regretted that the benefits of that statute were not more fully extended to Ireland ; so that suitors might be able to obtain at home the relief for which they are now obliged to proceed in the New Court at Westminster; thus making suits somewhat more inconvenient and expensive than they might otherwise be.
12. In Scotland, where a marriage can be dissolved at an expense of about £30; and, when there is not any opposition, for from £16 to £20; the administration of the law gives 'satisfaction to all. Notwithstanding the great facilities afforded, the number of divorces is very limited. In five years, from 1836 to 1841, the total was 95-being 19 in each year; of the
I “From bed and board,” that is, to live separated, but still be man and wife.
2 Declaring the marriage void from the beginning. 3 20 & 21 Vic. c. 85. Appendix, p 67.
entire number we find 55 decrees were obtained by husbands against their wives, mostly for adultery; and forty by wives against their husbands-about 19 of these being for desertion, and 11 for adultery. For nearly three hundred years has it been the established law in Scotland, that divorce shall be decreed " where either of the spouses deserts or separates from the other, and thereby defeats the chief purposes for which marriage was instituted:1 this being approved by St. Paul.2
13. Few countries there are where the law, on this subject, has been for years so ably debated, and carefully considered as in Prussia. And there a divorce may be obtained by mutual consent, or on the ground of aversion, or for mere incompatibility of temper. But the question of re-marriage is left to the ecclesiastical authorities “to determine the permissibility of such marriages upon the principles of the Christian law, as same are laid down in the word of God."
14. The notion of the indissolubility of marriage, naturally flows from the doctrines of the Roman Catholic Church. But in France the liberty of divorce is large :3 and can it be said that the First Consul and his celebrated Couseil D'etat, in framing the law, were unmindful of the conscientious feelings of the people ? The Roman Catholic Church itself holds marriages void in many cases : for instance, where it is discovered that there existed between the parties consanguinity, or affinity, within the forbidden degrees ; or where mental incapacity or fraud existed; or where either party at the time of contracting the marriage was under the proper age to consent, or where a prior valid and subsisting contract was entered into. On any of these grounds a decree of nullity of marriage is allowable.
15. Many members of the legislature desired that a much greater liberty of divorce than that provided by the statute should be granted. The bill presented to Parliament by the Lord Chancellor, in February, 1857,
1 Statute A.D. 1573, c. 55.
contained a clause authorizing voluntary separations ;" but it was entirely omitted from the bill presented by his Lordship a few months afterwards, and which was passed. Whether the law will undergo further alterations, and be placed on a footing with laws of other countries, speedily, or at all, is yet to be decided. The question, however, is now better understood; and most of the arguments of those who opposed the measure have been conclusively answered by the working of the Divorce Court. Indeed, until now, no one ever entertained the least idea of the awful depth of matrimonial misery that lulled beneath the silent current of English social existence. No doubt, in particular cases, the repugnance of the law to dissolve marriage will operate with great severity upon some individuals. must only say with Lord Stowell, “ they are to understand that they must live together, except for those few reasons known to the law, and must learn to soften, by mutual accommodation, the yoke they cannot throw off. If two persons,” says he, “ have pledged themselves at the altar of God to spend their lives together, for purposes that reach beyond themselves, the morality of the law gives no countenance to such a doctrine as that they may, by private contract, dissolve the bonds of this solemn tie. Mere turbulence of temper, petulance of manners, infirmity of body or mind, are not numbered amongst the causes for which this is allowed. When they occur, their effects are to be subdued by management, if possible, or submitted to with patience; for the engagement is to take for better, for worse; and painful as the performance of this duty may be, and painful as it certainly is, in many instances which exhibit a great deal of the misery which clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty, and that a duty of the first class and importance.
16. Before we pass to the new statute, it is desirable to refer briefly to the law of marriage; marriage being the basis upon which proceedings for divorce must
1 Evans v. Evans, 1 Hagg. Cons. R. 36.
rest. The first consideration, therefore, will be, are the parties legally married.
17. It would, however, be impossible within the compass of this, or any other treatise of the kind, to put the reader in a position to answer this question in every case; for there are no parts in the world where persons do not contract marriages, and the law is, that marriage rights must be tried by reference to the law of the country where they had their origin. We shall therefore be content with very shortly referring to the law of marriage in Ireland, England, and Scotland the probabilities being that in nineteen cases out of every twenty, the celebration will have taken place in some part of the United Kingdom.
18. By the ancient law of Ireland parties had two modes of entering into matrimony; the first, by public Bolemnization in facie ecclesiæ ; requiring the publication of banns, or the obtaining of license to dispense with them; the performance of a religious ceremony at a particular time and place; and, when the parties were under age, the consent of their guardians. Which requirements are the ground-work of the present law respecting the solemnization of marriage. The second, was performed without banns, license, consent, or re. gard to time or place; but required, as in the first, the presence of a clergyman in holy orders. There were also what were called consensual marriages, or marriages by mere consent of the parties. These, however, were more in the nature of contracts for marriage. Still the parties could not release each other; and cohabitation before the marriage in facie ecclesiæ, was not deemed fornication, and an act of infidelity was adultery. So many grievances arose from consensual marriages, that a statute was passed completely putting an end to them, and declaring that “no proceeding whatever should be had in Ireland to compel the celebration of any marriage by reason of any contract for matrimony whatsoever." Thus the only remedy left
| Dalrymple v. Dalrymple, 2 Hag. Con. 54.
was that which is now too often appealed to the ordi nary action for breach of promise
of marriage. 19. Very many statutes were subsequently passed, which it is unnecessary to refer to, most of them having been repealed or become obselete. The act of 1844, relating the celebration and registration of marriages in Ireland, contains many important provisions concerning marriages according to the rites of the United Church of England and Ireland, and also prescribes and regulates the mode of completing these matrimonial contracts without any appeal to spiritual authority. Dissenters and others who object to marry in facie ecclesiæ may repair to the Registrar, and, upon giving the notices, and procuring the certificates prescribed by the statute, may be married before that officer, in presence of two witnesses, by mere verbal declaration ; or, in the Registered place appointed, may solemnize their marriage according to any form they please-the Registrar and witnesses being present there also.3 And all persons unduly solemnizing marriages" (except in the case of a marriage by any Roman Catholic priest, which may be lawfully celebrated, or a marriage between two of the Society of Friends, commonly called Quakers, according to the usages of the said Society, or between two persons professing the Jewish religion, according to the usages of the Jews,)” are declared guilty of felony. It is, however, only when an undue solemnization takes place with the knowledge of both the parties that the marriage is declared void, 5 and where either party sball procure a marriage to be solemnized by means of any wilfully false notice or declaration, the guilty party, in addition to suffering the severe penalties prescribed by the act,6_forfeits all property accruing from the marriage. The provisions of this statute-85 in number cannot be referred to here at greater length; nor is it considered necessary at all to treat of the required notices, certificates, and licenses-the most ample care
17 & 8 Vic. c. 18.
2 Ibid. s. 30.