Jean-Yves Gilg

Editor, Solicitors Journal

From the archive: May 15, 1958

From the archive: May 15, 1958


Procedure in Divorce Cases

The Court for Divorce and Matrimonial Causes has been in action long enough to enable us to appreciate, to some extent, the mode in which it is likely to operate. One unpleasant feature connected with it is, perhaps, nothing more than an inevitable incident of the first establishment of such a jurisdiction. We allude to the large number of cases in which it has pronounced judgment of dissolution of marriage. Some days back Lord Campbell announced, with much apparent satisfaction, that since the opening of the Court eight such judgments had been given, and he added that, in one or two instances the parties could not, under the old system, have obtained relief from Parliament. We may hope that this rush of business will not continue, and that it is due to the practical denial of relief to all but the wealthy which formerly existed.

In a legal point of view, one of the most remarkable features of the change is, the new position which juries are made to assume in the process of obtaining a divorce.

Under the present Act, juries may be empanelled on the demand of either party, to try "any question of fact" which may be in dispute, and that question is to be reduced to writing, and submitted to them accordingly. It is, however, perfectly possible, if the parties are so inclined, to obtain all the relief which the Act can afford-even a dissolution of marriage, without having recourse to a jury at all. We are of opinion that the old system was open to the very strongest objections, both in principle and practice; but it certainly does appear to us that, accidentally no doubt, and unintentionally, it regulated the part played by juries in a more satisfactory manner than is the case with the present Act.

The old law, as we have already observed, was a miracle of brutality, clumsiness, and injustice; but, freely conceding this, it still remains the fact, that it established, in a rough sort of manner, the principle, that no one should be entitled to a dissolution of his marriage unless the popular voice, speaking through a jury, had declared that in the matter of his wife's adultery the fault had not been substantially on his side; and that the adulterer had really inflicted upon him a grave injury. A judicial separation, on the other hand, could be obtained by application to a judge alone. We must say, that this appears to us to have been a wholesome practice. The dissolution of a marriage is, perhaps, as solemn an act as any tribunal can be called upon to perform. Even criminal proceedings, except those which are of the very highest importance, are less serious; and there is no act whatever which appeals so forcibly to all the moral sympathies and instincts. There is none, therefore, in which it is so important that the popular sentiment should go along with and ratify the act of the judge; and hence, it would seem to follow, that suits for divorces a vinculo are just the sort of cases in which the intervention of a jury is particularly required. It is the inevitable tendency of submitting matters to exclusively judicial decision that a system of fixed rules is set up, according to which the judge can decide without incurring personal responsibility, whilst he gratifies one of the strongest of the intellectual instincts-the instinct of ingenuity, by elaborating them. Now, a divorce a vinculo is just the kind of transaction to which this sort of proceeding is altogether inapplicable; it stands specially in need of the popular moral sanction, and its good effect, in a public point of view, depends almost entirely on the degree in which it obtains it. On the other hand, it is the last case in which any of the parties to the transaction are likely to wish for any publicity which they can contrive to avoid. They have every reason to wish the whole matter to be transacted with as much privacy as possible. The indulgence of this wish appears to us to be incompatible with the public interest; and we therefore regret that the law, as it stands, should enable them to gratify it.

The power of appealing to a jury in questions of judicial separation appears to us to be as objectionable as the power of declining their intervention in cases of divorce a vinculo. A judicial separation is essentially a private matter-a sort of compromise or treaty in which the parties agree in effect to separate upon certain terms. This, we think, is exactly the case in which stringent judicial rules, and not the moral assent and approbation of the community, are desirable. A jury is, no doubt, the proper tribunal to decide with justice upon the question whether, upon a review of all the circumstances, a husband has disentitled himself to relief; but it is the last body in the world which ought to be trusted to say whether a hasty act amounts to that kind and degree of cruelty which justifies a wife in demanding separation. The dissolution of a marriage ought to be felt to be an act which, like a heavy sentence on a criminal, is matter of grave public importance. A judicial separation is a private arrangement, unimportant to the public, and one which ought only to be allowed under stringent rules, rigidly enforced. For these reasons we should wish to see the introduction of juries made obligatory in the case of divorces a vinculo, and prevented in the case of judicial separations.