The Evening Star

Saturday, November 7, 1885,

The Law of Divorce.

We referred a few days ago to the act ion of Mr Downie Stewart in respect to the Divorce and Matrimonial Causes Bill, which has apparent y caused such a flutter in the dovecots of Dunedin West, and brought the honorable gentleman to the bar of public opinion, arraigned, as it were, on a charge of laxity of principle in relation to connubial bond. A story is told of an ancient philosopher who invariably appeared in public with a conspicuous rent somewhere in his garments. Being expostulated with by a friend, he explained that he did so with a purpose, since people, criticising his slovenliness of apparel, might perhaps leave his character alone. Mr Stewart possibly may have had the ingenious design of drawing a red herring across the scent page break of his general political conduct by expressing broad views on the subject of divorce; and he certainly took up an extreme position when he declared himself disposed to go the length that, "where there were no children, if a couple mutually desired to separate, they should be entitled to get a divorce on signing an application before a Judge of the Supreme Court and renewing that application after an interval of six months." With perhaps this exception, we are inclined to the opinion that the suggestions of Mr Stewart were in the right direction, and they are based on what is now the law in at least two European countries—France and Belgium.

The 'Law Quarterly Review,' in the third number, which appeared in July last, contains an interesting article, entitled "The New French Divorce Act," which bears very directly on the subject at present to some extent agitating the public mind in New Zealand. The writer, Mr Thomas Barclay—a name well know in the literature of jurisprudence—commences by giving a brief précis of the history of divorce in France. Repudiated by the Roman Catholic Church, it was not legally recognised under the old Monarchy, but was introduced into French law by the legislators of the Revolution. On the restoration of the Bourbons, one of the first changes made was the repeal of the "Title of the Civil Code on Divorce." This was done in 1816, and from then to 1881 the only legal remedy for aggrieved consorts was judicial separation. The movement in favor of the revival of divorce, which resulted in the present law, was begun in 1876, and the first proposals were simply met with ridicule. In 1879 the Bill was first taken seriously into consideration, but was not finally passed and promulgated until July, 1884. Though this law is in form a revival of the old "Title of the Civil Code," several of the provisions have been modified in essential particulars. Thus the original "title" (statute) only allowed infidelity of the husband as a ground of divorce under certain circumstances of gross impropriety, and, regarding marriage as a contract, dependent like other contracts on the consent of the parties, declared it to be revocable by mutual consent The new Act has maintained the repeal of 1816 as regards this ground, so that divorce by mutual consent is not authorised; whilst husband and wife are placed on the same footing as regards unfaithfulness, The old statute also forbade the subsequent marriage of the divorced parties with each other. The new article forbids their remarriage only where one or the other party has, subsequently to the divorce, contracted a fresh marriage, followed by a second divorce. A second divorce of the same parties also is forbidden, except on the ground of a condemnation to severe criminal punishment Especially to be noted is the new principle introduced into the Civil Code as regards judicial separation. Under the old statutes judicial separation was an alternative for divorce. Under the new Act it can be converted into divorce on the application of cither of the parties after the lapse of three years from the judgment of separation, which can thus become a preliminary step to divorce. The grounds for divorce, where it is not the sequence of judicial separation, are the unfaithfulness respectively of either husband or wife, serious violence, cruelty, injury and insult on the part of either, or the condemnation of one of the consorts to grave criminal punishment. The law does not distinguish between husband and wife; the mode of proof must be the same, and criminal correspondence is held to be evidence against the husband as hitherto held against the wife. Connivance, collusion, and unfaithfulness on the part of the petitioner are not defences in the French law. By an article of the penal code, the wife convicted of unfaithfulness is liable to imprisonment for a period of not less than three months and not exceeding two years; power being given to the husband to page break arrest the punishment by taking back the culprit. There is no such penalty for the husband. The corespondent, as we should call him, is liable to the penalties of imprisonment and fine, and his marriage with the respondent is absolutely prohibited. In Belgium the principles of the divorce law are much the same as in France; but other additional grounds for divorce are admitted by the Courts, e g., desertion by either husband or wife, coupled with circumstances indicating persistent intent; highly imprudent conduct; habitual drunkenness.

It may be seen that the new laws in force in France and Belgium contain provisions which suggest themselves as being at least worthy of consideration. The English law, which is practically our own, is, Mr Barclay states in the paper which has suggested this article, "a mere string of detailed fragments' without any governing principle or motive but that probably of its author's to push it through Parliament by concessions to conflicting prejudices in the interests of some momentary object, and regardless of any relation to general legal policy."