What Is Marriage?

I

IT is probable that there is no subject on which ecclesiastical and secular opinion is so keenly divided in this country as the subject of Divorce Law Reform. So far as public opinion is articulate, organized Christianity, as represented by its officers, is practically solid against, any extension of facilities for divorce, except for a rather academic belief that there should be equality between the sexes; while the laity are as a whole, but by no means so solidly, in favor of it. There are always, of course, a few ecclesiastically minded who will out-Herod Herod on ecclesiastical topics. There is also a considerable number of working-class women whose opposition to easier divorce bases itself primarily on economic grounds. But, on the whole, the great mass of the people are in favor of reform, and the demand for it, though still largely inarticulate and unorganized, is undoubtedly growing stronger.

It is an interesting point for a prophet, whether this is not the issue on which the disestablishment of the Church of England may be decided. There are few questions, indeed, on which the Established Church feels more strongly than on the Establishment; few therefore on which she will not compromise or yield if that is threatened. She has endured the domination of her affairs by a Parliament, membership of which need not and does not involve Anglicanism, or even Christianity. She has accepted the appointment of her bishops by Presbyterian¹ or Baptist² prime ministers; of her parish priests by patrons who may be of any religion³ or none. Even her ‘supreme head,’the reigning sovereign, is not a whole-time Anglican.⁴ All this the Church endures with equanimity. But if there is a point at which her tolerance and genius for compromise seem likely to fail her. it is on the question of marriage and divorce. It. is even believed that she will risk the Establishment rather than accept another law than her own.

It will be a curious irony if this really shall prove to be the rock on which the Establishment is doomed to strike; for it is the Establishment that is the cause of offense between her and the Free Churches; and this question of divorce is one on which she and they are absolutely at one. When Lord Buckmaster’s bill for increasing facilities for divorce was introduced into the House of Lords, expressions of opinion on its merits were published in all the leading newspapers. So far as one could judge by these, representative Free Churchmen were as unyielding in their opposition to all reform as their Anglican and Roman Catholic brethren.

It is exceedingly doubtful whether clerical opinion here represents anything more than a small minority of the congregations behind the ministers. But it is certainly noteworthy that official and articulate churchmanship (whether Anglican or Free) is immovably opposed to divorce-law reform now, while organized Christianity in the past has been exceedingly uncertain on the question.

Lord Hugh Cecil, one of the most distinguished of Anglican laymen, affirms that opposition to divorce is based on the express teaching of our Lord Himself, given to us in the Sermon on the Mount and further elucidated, in answer to a question from the Pharisees, in Matthew 19: 4-6. Here, says Lord Hugh Cecil, our Lord explains to us the nature of marriage, and makes it clear that divorce is not only inexpedient or wrong, but, in fact, literally impossible.

Have ye not read, that he which made them at the beginning made them male and female,
And said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh ? . . .
What therefore God hath joined together, let not man put asunder.

‘They twain shall be one flesh.’ This is ‘marriage.’ And therefore Christ’s teaching is that

according to the original plan of God, man and wife are in marriage joined together for life and cannot be put asunder. Any second union is, therefore, the original parties being alive, adultery and not marriage. Remarriage after divorce is not merely wrong but is not marriage at all. It is not an unworthy marriage or a loveless marriage — it is adultery. . . . This same point, that our Lord did not merely prohibit divorce but revealed what marriage is and how it is inconsistent with divorce, at once disposes of all those not very clear-headed persons who seem to think that the Church ought to conform to the law of the land in respect to the dissolubility of marriage, whatever that law may be. It is clear that, if in the mind of God marriage cannot be dissolved, nothing that the State or, for that matter, the Church, can do will make any difference. An Act of Parliament could as effectively regulate the conditions of regeneration, or enact that murder is consistent with Christian charity,⁵ as that the remarriage of people wrongly divorced is marriage and not adultery.

This very interesting and — if the premises be granted — very logical theory of marriage is worth considering in detail, as it is evidently one which is likely to be adopted by ‘high’ Churchmen in the future. It has been developed at some length by so learned a champion as Canon T. A. Lacey, and, when laid before the National Assembly of the Church of England by Lord Hugh Cecil at a recent session, made a very great and (I think) favorable impression.

It is clear, however, that though this may be the accepted teaching of the Church in the future, it has certainly not been so in the past, nor is it quite consistent with the Church’s attitude in the matter at present. In an appendix to the Report of the Divorce Commission of 1912, we are reminded of the length of time which elapsed before the Western Church accepted the view that marriage is indissoluble; of the devices by which the hardships inevitable to such a view were escaped; and of the fact that the Eastern Church has never adopted it at all, and the Church of England abandoned it in the middle of the sixteenth century.

Neither the Early Christian Emperors nor the Early Fathers were able to take up a definite attitude on the whole question of marriage and divorce. ... In 449 A.D. divorce was limited to some eleven causes, but divorce by mutual consent was not abolished. This legislation practically represents the law of Greece to-day as accepted by the Greek Church. In Russia the Orthodox Church has adopted a more limited range of causes, namely: adultery, impotence, loss of civil rights and deportation, desertion for five years. . . . Justinian, a century later, restricted divorce by mutual consent to cases of impotence or captivity, or where either party wished to enter a monastery; subsequently this liberty was practically abolished by Justinian; but in 566 A.D. his successor, Justin II, restored the free right of divorce by mutual consent, and it was not until the beginning of the eleventh century, at the moment when in the West the doctrine of the indissolubility of marriage was at last receiving universal assent, that in the East divorce by mutual consent was abolished.

Even now ‘the entire Eastern Church has an extensive liberty of divorce with the right of remarriage,’ while at the Reformation the Church of England adopted the curious device of granting the right of remarriage after divorce for adultery by a special Act of Parliament in each case — a costly remedy which made divorce a luxury of the very rich, and which was replaced in 1857 by our present Divorce Act, which, without altering the causes for which divorce might be granted,⁶ made it attainable by a judicial instead of a pseudolegislative process.

It will be seen, therefore, that neither in the Western nor the Eastern Church, nor in our own Church of England, has the view advanced by Dr. Lacey and Lord Hugh Cecil, that marriage is by its very nature (or ‘in the mind of God’) indissoluble, been consistently held. It may indeed be argued that this was because of ‘the hardness of our hearts’ and the slowness of our understanding, which has compelled the Church to advance only by slow degrees to a complete realization of our Lord’s meaning and purpose.

Such a contention would be perfectly justifiable, and has indeed been advanced with regard to other matters — the teaching of the Church on slavery, for example; on the position of women, and so forth. But a further difficulty presents itself when we learn that even Lord Hugh Cecil admits the necessity of granting divorce for a single cause — adultery .

It is true that this exception to a general rule is of doubtful authenticity; nevertheless, ‘in face of the text of St. Matthew’s Gospel as we have it,⁷ it cannot be said that there is culpable perversity in believing that our Lord permitted divorce and remarriage for the cause of fornication only.’ Yet, in view of the general rule, ‘remarriage after divorce must be at the best a rash and undesirable thing.’

But this is to abandon the whole thesis! If marriage is of its nature indissoluble, to dissolve it cannot be rash or undesirable, but is simply impossible. To admit even a single exception is to wreck the whole theory, which is based on the nature of marriage itself. It is equivalent to an assertion that, in the nature of things, once a man’s head is cut off, he cannot grow another; coupled with an assurance that, if he does, it will be a rash and undesirable act. The whole point is that a man’s body is of such a nature that it cannot grow a second head, and marriage of such a nature that it cannot be dissolved. If this ground is abandoned, what remains but a mere difference of opinion as to the cause or causes for which dissolution ceases to be ‘rash and undesirable’ and becomes just and expedient?

II

An attempt is made, however, to escape the dilemma by entering into a discussion on the nature of marriage. It is indissoluble except — doubtfully — for adultery, because adultery in itself is a breaking of essential marriage.

This brings us to an issue which has been evaded too long by the opponents of divorce reform: one which should have been the first, not the last, to be faced. What is ‘marriage’? We are told that our Lord taught that marriage is of its nature indissoluble; we have never yet been told what our Lord meant by marriage, or in what it truly consists. Yet here is a vital matter, and one on which it is very easy to disagree.

Those who hold, for example, that divorce may be allowed, however reluctantly, for adultery and for adultery only, because adultery destroys the very essence and character of marriage, appear to overemphasize the physical element in marriage, to an extent which to others seems to degrade it to the level of animal mating rather than human marriage. There is a certain piquancy in quoting the late Lord Chancellor, Lord Birkenhead, in such a connection, against the Archbishop of Canterbury; yet there are many who will find his statement far more convincing than that of the great ecclesiastic, and much loftier in its estimate of true marriage.

Said Lord Birkenhead, speaking in the House of Lords in a debate on the Matrimonial Clauses Bill, on March 24, 1920, —

The ecclesiastical case has been adopted under the influence of an almost unconscious opportunism — the case, namely, that, although marriage is not otherwise dissoluble, it may nevertheless be dissolved in cases where adultery has been committed. I, my Lords, can only express my amazement that men of experience, men of affairs, men whose experience and opinions we respect, should have concentrated upon adultery as the one circumstance which ought to afford relief from the marriage tie. Adultery is a breach of the carnal implications of marriage. Insistence upon the duties of continence and chastity is important. It is vitally important to society. But I have always taken the view that that aspect of marriage was exaggerated, and somewhat crudely exaggerated, in the Marriage Service. I am concerned to-day to make this point, by which I will stand or fall — that the spiritual and moral sides of marriage are incomparably more important than the physical side.
This question is fundamental, and I invite your Lordships to consider it with the greatest earnestness. It seems to me that there can be no doubt as to which is the higher and more important side of marriage. If we think of all that marriage represents to most of us, — the memories of the world’s adventure faced together in youth so heedlessly, and yet so confidently; the tender comradeship, the sweet association of parenthood, — how much more these count than the bond which nature, in its ingenious teleology, has contrived to secure, and render agreeable, the perpetuation of the species.
I do not know whether one of your Lordships would be bold enough to say that the physical side of marriage is the highest. I greatly doubt it. I do not think that the Most Reverend Primate, the Archbishop of Canterbury, who, I believe, is to follow me in this debate, would for one moment, if dialectically he were a free agent, lend the weight of his authority to the position that the physical side of marriage is the highest. And yet, be this observed, that those who oppose this bill must say that, and for this reason, that, if they say that the physical side of marriage is not the highest, they are committed to this monstrous and mediæval paradox, that they assent to divorce for a breach of the less important obligations, and they deny divorce for a breach of the more important obligations of marriage. I conceive this to be an insult to the spiritual and sacramental conception of marriage; and it is just because I place other elements in the marriage state far, far higher than I place the physical relationship, that I make this fundamental in my argument. I specially desire that any answer to that argument may deal with this point, that a breach of that which is higher must be treated by the State as not less grave than a breach of that which is lower.⁸

Such an argument is hard indeed to meet. It can be met, if at all, only by a very clear definition of what true marriage is ‘in the mind of God,’ or ‘in the nature of things’; and this definition has been far to seek. Those whom God has joined together man must by no means put asunder. But whom has he joined together, and by what sign are we to know them? The physical union cannot in itself constitute marriage, or many would have many mates. It is true that I have heard it seriously argued that the first sexual connection is marriage, and that such a marriage can never be dissolved. When I pointed out that, if this were so, a woman might find herself married to a man who was not married to her, and vice versa, I was assured that this was undoubtedly the case and ‘made no difference to the facts’!

The idea of a world full of wives whose husbands were not their husbands, and husbands whose wives were other men’s wives, filled me with confusion and alarm. But if we are to avoid this terrifying conclusion, how are we to do it? The granting of divorce for adultery only, suggests that the physical bond is the whole of marriage. If it is not (and it is impossible to suppose that the Archbishop of Canterbury or any other decent person thinks it is), what is it that constitutes marriage ‘in the mind of God’? There lies the real point.

Let us examine the grounds on which, under canon law, a marriage was held to be no marriage and was therefore declared null. It is startling to find that among them occurs the following: —

Where one or other or both of the parties does or do not freely consent to marry the other, not understanding the nature of the contract.⁹

A startling doctrine, indeed, and liable, one would imagine, to nullify the greater number of marriages made, in view of the blank ignorance of ‘ the nature of the contract’ with which most women have in the past commonly entered into it! But, however interpreted, it at least forbids the belief that sexual connection, even when permitted and blessed by ‘sacramental marriage’ in a church, in itself constitutes marriage ‘in the sight of God.’ When, therefore, we consider the great affirmation, ‘What therefore God hath joined together, let not man put asunder,’we are immediately confronted with the question — whom has God joined together? And this question the mere statement that ‘marriage is indissoluble’ entirely begs.

I have known women ‘married’ to men only to be at once infected with a disease of whose very existence they were ignorant; men and women ‘married’ in a state of intoxication; ‘married’ for any kind of reason — wealth, position, safety, and so forth — which could possibly desecrate the idea of marriage. Were all these ‘joined together’ by God? From his wide judicial experience, Lord Buckmaster gives us some instances of women infected by disease or victims of unspeakable savagery, or chained to an adulterer who has deserted her and in all but name is not her husband. Are these marriages in the sight of God?

Let us examine the teaching of our Lord again. We find it in the Sermon on the Mount: —

It hath been said, Whosoever shall put away his wife, let him give her a writing of divorcement:
But I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery.

It is now very generally believed that the phrase ‘saving for the cause of fornication’ was added by the evangelist, and formed no part of our Lord’s original saying. Personally, I believe that this is so. Christ was laying down a principle, and the exception turns it into a rule — a thing in itself most unlike Him.

But throughout this great discourse, the evangelist represents our Lord as laying down principles of conduct. The ‘sermon’ here divides itself into paragraphs each of which begins: ‘Ye have heard that it was said by them of old time . . . but I say unto you . . . ‘ We are not to kill, not to commit adultery, not to take oaths, not to revenge our injuries, not to hate our enemies; and later, not to give alms, pray, or fast in public.

To which of these principles do we yield a literal obedience? The Church again and again has sanctioned war and capital punishment. Every bishop on the bench, every incumbent of a living, every witness in a court of law, takes oaths.

No country executes a man for murder because he admits that he hates his brother, nor literally regards a lustful glance as adultery. Neither does the Church excommunicate Christians who refuse either gifts or loans to those who ask. Yet it is urged that Christians who have almost universally disregarded the literal meaning of every other principle enunciated in the Sermon on the Mount must literally obey the injunction against divorce on pain of disloyalty to their Lord! I have even heard it argued that this one injunction, though, on the surface, singularly like the others, is in fact couched in terms more definite, more peremptory, and clearer than the rest. I have already quoted these definite and peremptory instructions. Look now at those concerning the taking of oaths: —

Ye have heard that it hath been said by them of old time, Thou shaft not forswear thyself, but shall, perform unto the Lord thine oaths:
But I say unto you, Swear not at all: neither by heaven; for it is God’s throne: Nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King.
Neither shall thou swear by thy head, because thou canst not make one hair white or black.
But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.

Is it possible to be more clear, more peremptory, more definite? Yet hardly any Christian scruples to take an oath, and, I confess, the spectacle of a Quaker punctiliously ‘making an affirmation’ instead always afflicts me with a sense of unreality. Is it upon such meticulous observances that our Lord would insist? Surely He meant us to understand that we were called upon to he so utterly sincere that oaths would be no longer necessary . There can be no great or fundamental significance between ‘taking an oath’ and ‘ making a solemn affirmation.'

So at least the overwhelming majority of Christians have believed. Can they, however, completely set aside the necessity for literal obedience to a whole catalogue of requirements and, with any appearance of logic or reason, apply a rigid literalism to one alone?

If they are justified in doing so, they must at least not immediately refuse to do anything of the sort! This sounds like nonsense; but in fact just so nonsensical is the position of rigid supporters of a literal obedience to Christ’s words about divorce. For He also says: ‘What therefore God hath joined together, let not man put asunder.’ Yet (making the huge assumption that all legally ‘married’ people are joined together by God) there is not a church in the world which has not admitted the necessity of, sometimes, putting them asunder.

‘No branch of the Catholic Church requires a Christian spouse to continue living with one whose temper or behavior has become unbearable. Divorce is, and always has been, recognized as a sad necessity at times. What it does require in the partners so separated is a single life.’ So writes — and quite correctly writes — an opponent of divorce with freedom to remarry. And everywhere Christian people and Christian churches have acted as she describes. In Great Britain, ‘the number of separation orders granted during the thirteen years ending 1908, the latest date for which statistics are available, totaled no less than 89,960. This represents an average for each year of 6689.’¹⁰

No one denies that such separations are sometimes absolutely necessary. But they are separations. They constitute a complete ‘putting asunder’ of married people. Those who were ‘joined together’ are now definitely and legally ‘put asunder.’ What then becomes of our literal obedience to the principle laid down by our Lord? He says nothing about partners so separated leading ‘a single life’; He simply forbids the separation. Yet those who oppose the extension of facilities for divorce admit with glib readiness the necessity for ‘putting asunder,’ and then go on to formulate a totally different injunction. ‘What (the Church ) does require in the partners so separated is a single life.’ Well may we ask, ‘By what authority?’

The very people who claim that this one principle, alone among all those enunciated by Christ in the Sermon on the Mount, must be literally obeyed, by an apparently unconscious, but not less palpable, jugglery substitute for his command, ‘Let not man put asunder,' their own rule, ‘Let them be put asunder and not marry again,' and, with innocent effrontery, demand a literal obedience to their own invention! The very writer who urges literal obedience complacently remarks that no Christian denies the necessity, on humanitarian grounds, of the putting asunder which his authority, ex hypothesi, forbids!

Consider then the real significance of Christ’s words: ‘What therefore God hath joined together, let not man put asunder.’ Can anyone be found to believe that by the joining-together of God, the Lord of Thought really meant no more than a legal contract, or even a religious rite? Is that like Christ? Is not the most salient, characteristic of all his teaching its almost terrible emphasis on reality? Must not the real marriage of which we speak mean something which would make a ‘divorce’ or a ‘legal separation’ a horror? Yes — or any other device for keeping apart those whom God has joined together.

Worldly considerations, or a social organization which defers or prevents the physical union of those whose spirits are one in love, surely stand condemned before so great a saying as this. Has the Church troubled itself greatly at the obstacles placed by custom, by society, or by the law, in the way of perfect and sacramental marriage of those to whom God has given a depth of spiritual unity, a oneness of love which should, must, truly join them together?

No! It is not possible to believe that such a teacher as Jesus of Nazareth regarded as ‘marriage’ the unions described by Lord Buckmaster. In such there never was, or there has now ceased to be, anything left of what — I do not say Christ but — any ordinarily decent-minded person would regard as the essentials of marriage. Neither love nor respect nor forbearance, nor even the absence of active and odious cruelty, is there.

So clear is this that no Church can dare to urge the continued living-together of these ‘ married ‘ people. All admit that there is no true marriage here; all admit the absolute necessity of divorce; yet some, having abandoned the belief that such a marriage is a real marriage, still insist on the now empty legal form, and do so — oh, strange irony! — in the name of Christ!

Would He then have insisted on a legal form from which all reality had departed?

III

It is impossible to base our laws on legal interpretations of Christ’s sayings. If we did so, not only must the legal separation of married people be forbidden, on the one hand, but, on the other, divorce must be granted for a lustful glance (since Christ declared that this was equivalent to adultery), and men must be hanged for hatred, since the same Authority made it equivalent to murder. What we Christians have to do is to create and uphold such an ideal of marriage as Christ would recognize as ‘made by God,’ to which the very idea of separation would be abhorrent.

It would involve absolute fidelity — to the ideal before marriage, to the person after marriage. It should, being a spiritual union, be permanent, and, being physical, be sacramental. It should be the outward and visible sign of the grace of a spiritual union. No one should dare to marry unless he truly believes that his love is for life, and is prepared to accept the responsibility for such a love. He should know that body, soul, and spirit all go to a perfect union, and should regard the physical as the sacrament of the spiritual love. Sacramental in that it not only expresses but actually conveys and intensifies love; sacramental also in that it must ultimately cease to be,¹¹ not because something is lost but because it is transcended. He should realize that passion, glorious and essential as it is, must inevitably pass at last, and should not confound its passing with the passing of love, but realize that love is something greater and deeper still. No one therefore should be allowed to marry in ignorance, and on this the Church should strenuously insist.

Every boy and girl should grow up to the knowledge that sex is a great creative impulse, and, being creative, is most sacred. They should learn that it is not part of our lower natures but, on the contrary, is associated with the higher forms of life, and becomes conscious, powerful, and individual, not as life sinks, but as it rises in the scale of created things. They should realize its significance to the race, and the meaning to human progress of the prolonged helplessness of human infancy. In a word, they should understand all the responsibilities of sex-love, both to each other, the home, and the race. They should know all that can be rightly known without experience.

11 In Heaven we need no sacraments.

But when that is said, how much is left unknown! All that can be known without experience! No one believes more strongly than I in letting the light of knowledge into hitherto dark places; no one hopes more from it. But to the end of time — as long as we are human — how tragically possible it must be to make mistakes!

Nothing is more glamorous, nothing more deceptive, than physical passion. With all the wisest teaching in the world, with all the good-will imaginable, men and women sometimes will be deceived, and they will shake the stars with mutual vows of love who have in fact nothing but passion in their hearts. Such should know that love may still come, and should strive and long for its coming. Again and again they will succeed. In no case should failure ever be regarded lightly or accepted easily.

But why shut our eyas to the fact that a failure will sometimes happen? And if it does, — if the time comes when we are forced to admit that, of all the elements that make up a true marriage, nothing is left — let us admit the facts. I maintain, in the face of more ‘orthodox’ moralists, that to pretend that a marriage is real when it is not is the real immorality, because it is dishonest.

I urge therefore that divorce should be granted when marriage has in fact ceased. It should not be granted because any one or all of a schedule of offenses has been committed, but because the marriage is no longer real. I have no desire to extend the list of causes for divorce. I believe that to do this — though it would be better than no reform at all — would leave us still in the quagmire of legal fictions, perjury, and ‘collusion,’which makes proceedings for divorce a joke to the indecent and a horror to the decent-minded. With regard to this form of lawlessness, it is notorious and apparently impossible to check.

The Journal of the Divorce Law Reform Union for October, 1922, quotes the case of a man who had been driven by her intolerable conduct to leave his wife and who was thereupon ordered to pay for her maintenance. He refused, knowing her to be leading an immoral life, and was imprisoned in consequence.

This was Charman’s position when his wife, through solicitors, informed him that she would not further prosecute him for maintenance if he would give her evidence on which to obtain a divorce — ‘for business reasons it suited her to marry again.’ The man, delighted at the prospect of getting his freedom, and having ‘heard talk of hotel evidence,’ gets a friend to go to tea with him at a hotel, but no misconduct took place. The wife petitioned for divorce, and shortly before the case came on, Charman found out that his wife had given birth to a child a few months previously, which could not be his as he had not lived with her for three years; he also learned that even if he got his freedom, as the case was undefended, and she would in all probability win, he would still have to pay her a third of his income for life. So he put in a defense, denied adultery, and the young woman produced proof to the same effect. The wife’s divorce suit was dismissed, and the papers sent to the Public Prosecutor, and Charman was arrested for conspiracy and sentenced to four months’ imprisonment. . . .
The point of the case is that it is by no means exceptional. It is notorious that a large number of people have been doing this sort of thing for years, but, being in a position to employ the right kind of lawyers and counsel, have never been caught; while this workingman, ignorant of the law and its operation, the first to be prosecuted for conspiracy, is punished; while a prominent man, who did the same thing, and courageously published it to the world at large, with the object of showing how ridiculous the law is, was not touched.

The Journal points out that, ‘so long as adultery is the one and only ground on which freedom from an intolerable burden can be obtained, people will either commit the act or manufacture evidence.’ But this is hardly, in my judgment, a just comment. In the case of a wife (in England) adultery is not ‘the one and only ground’ for divorce: she must prove cruelty or desertion as well. The consequence is, however, the same. She has to ‘manufacture evidence’ of one of these also.

My point is that the whole method of ‘obtaining freedom from an intolerable burden ‘ is a mistaken one. A marriage should be declared legally dissolved when it has actually ceased to be a real marriage; it should not be regarded as real by a legal fiction when it is not real. Attempts to pretend that that is real which is not real will always result in attempts to prove that offenses have taken place which have not taken place, because the system itself is based on a refusal to recognize the truth.

It will at once be retorted that no judge can be expected to decide when a marriage has ceased to be a ‘real’ marriage. Certainly such an issue is not an easy one to decide; yet it is decided every day when a ‘legal separation’ is granted.

A legal separation is an admission that a given marriage is a hopeless and complete failure. No judge would or could refuse to adjudicate on such an issue. Lord Buckmaster, writing on this point, says: —

In no case that I tried did there appear to me to be the faintest chance of reconciliation: the marriage tie had been broken beyond repair, and its sanctity utterly defiled; nor, again, though I watched with extreme vigilance, was there any single case where collusion could be suggested. With regard to cruelty, there was no case which a competent lawyer, skilled in the knowledge of witnesses, could not have tried.
I was, of course, faced with the question as to what is cruelty, which, we are informed, is so difficult that you want the King’s Proctor as an expert in cruelty to keep the law steady. I made my own rules. If a man who was sober kicked his wife in the stomach when she was pregnant, that seemed to me enough; if she were not pregnant, and he was drunk, he might have to do it again, or else her complaint might be due to what the most persistent opponent of my bill called ‘nervous irritation.’ So, also, with kicking her downstairs, or making her sleep on the doormat in winter — all of which cases I had to consider. I had no case before me involving the question of lunacy or criminality, for these, as the law stands, are irrelevant considerations in connection with divorce; but the evidence on that is near at hand. Within the last few months two women have been left eternally widowed, with their husbands fast immured in criminal lunatic asylums, and in this unnatural state they will remain while the shadow of the years lengthens and life’s day grows dim. Surely the desire to help such people is not, as some appear to think, prompted by Satan, but is a humble effort to carry out the principle of the supplication which asks that, while our own wants are satisfied, we should not be unmindful of the wants of others.

It is urged, says Lord Birkenhead, that cruelty shall constitute a ground of divorce. ‘I assure your Lordships that we shall find no difficulty whatever in formulating a definition which will be sufficiently lucid for the guidance of the Courts . . . the conception of cruelty will be examined much more closely by the Law Courts when we are divorced from our present unreal system of law.'

Already, lawyers, magistrates, and judges have to consider and put their own interpretation on the facts advanced in claiming a legal separation. There would be nothing new in their having to do so when called upon to make the still more serious decision as to complete divorce. Mr. Freke Palmer writes: ‘In advising a woman whether she had a case or not, I should not consider so much the time since the wife was deserted, but I should more particularly consider whether the circumstances were such as would convince a magistrate that the man intended to desert his wife.’ Not the fact merely, but the intention, is taken into consideration. I urge that, in claiming or granting divorce, the same judgment should be used, and the point at issue should be, not whether one or other specific offense had been committed, but whether in the judgment of the Court the marriage itself had ceased to be in any respect a real marriage.

I suggest that the case should not be decided by one judge only, but by three at least, and that both sexes should be represented on the bench.

If the decision goes against the divorce, the matter should remain in suspense for a period of years, the length of the period to be decided by the law of the land, in accordance with the best possible expert opinion. But I hold that if, at the end of such period as the law decides, the married partners remain immovably and reasonably convinced that their marriage is not valid or ‘real,’ the Court should not have power to refuse divorce. If, however, only one of the partners should desire it, the decision should then be with the Court.

Will such a system raise or lower our ideal of marriage? I maintain most strongly that it will raise it. However we may camouflage it, the present position is that marriage consists in a legal contract, followed by sexual intercourse; and it is maintained that this is ‘marriage,’ even though not one single respectable element of true marriage remains. By what amazing sophistry is it claimed that this is to uphold a high ideal of ‘marriage’? It is, on the contrary, to degrade it. It is as immoral as it is dishonest.

I am well assured that marriage is not merely an affair for the individual. Both Church and State do well to concern themselves with it. But let them do so at the right end — that is to say, at the beginning.

To fail in marriage is a great and tragic failure — tragic for the married partners, even more tragic for their children. Everyone should be taught to think of marriage as a high and sacred responsibility. Both Church and State — but especially the Church — should regard it as a grave indictment against themselves that any of their members should marry without knowing what they are about.

Ignorance and levity should be made impossible, so far as any teaching or moral authority can make them so. No one should be allowed to admit failure lightly or quickly. Every effort should be made to create a deep sense of responsibility, to induce those who have failed, to try whether success be not yet possible.

But so long as either Church or State bases its laws upon a fiction, — as long as their morality leans upon a dishonest but absolutely rigid pretense, — so long will they shirk the harder but truer duty of inculcating so high an ideal of marriage, so deep a sense of mutual and racial responsibility, that both separation and divorce will at last become as rare as they are always tragic.