478
DIVORCE criminal conversation. It was made obligatory to join an too narrow. But the Queen’s Proctor, or the official by ■alleged adulterer in the suit, and damages (sec. 33) might whom that officer was afterwards represented, has in be claimed against him, and he might be ordered to pay practice availed himself of the general authority given to the costs of the proceedings (sec. 34). The latter pro- any person to show cause why a decree nisi should not be vision, however, has been considerably curtailed by a made absolute, and has thus been enabled to render such recent decision of the Court of Appeal. important service to the administration of justice that it The Act of 1857 in one respect went beyond a transfer is difficult to imagine the due execution of the law of -of the powers exercised by the ecclesiastical courts or the divorce by a court without such assistance. In 1866 legislature. It provided (sec. 21) that a wife deserted by power was given to the court to order an allowance to be her husband might apply to a magistrate in petty paid by a guilty husband to a wife on a dissolution of sessions and obtain an order which had the effect of marriage. This Act also can hardly be considered to have protecting her earnings and property, and during the been drawn with sufficient care, inasmuch as while it currency of such order of protection a wife was to be in provides that if the husband’s means diminish, the allowance the same position as if she had obtained an order for may be diminished or suspended, it makes no correspondjudicial separation. The effect of this section appears ing provision for increase of the allowance if the husband’s to have been small; but further legislation in 1895 has means increase; nor, apparently, does it permit of an .afforded a cheap and speedy remedy to all classes of the allowance in addition to, but only in substitution for, a community. settlement. The Act makes no provision for allowance The framers of the Act of 1857 were careful to avoid to a guilty wife, and it certainly is a serious defect that offending the scruples of clergymen who disapproved of the power to grant an allowance does not extend to the complete dissolution of marriage by a lay court. It cases of nullity. In 1868 an appeal to the House of was provided (secs. 57 and 58) that no clergyman should Lords was given in cases of decree for dissolution or be compelled to solemnize the marriage of any person nullity of marriage. whose former marriage had been dissolved on the ground The great changes effected by the Judicature Acts of his or her adultery, but should permit any other included the Court for Divorce and Matrimonial Causes. clergyman to solemnize the marriage in any church or Under their operation a division of the High Court of ■chapel in which the parties were entitled to be married. Justice was constituted, under the designation of the Probate It is to be feared that this concession, ample as it appears, Division and Admiralty Division, to which was assigned has not allayed conscientious objections, which are perhaps that class of legal administration governed mainly by the from their nature insuperable. The Act made no provision principles and practice of the canon and civil law. The as to the name to be borne by a wife after a divorce; and division consists of a President, and a Justice of the High this omission has led to litigation in the case of a peer’s Court, with registrars representing each branch of the wife. jurisdiction. Appeals lie to the Court of Appeal, and Modifications of the Act of 1857.—Subsequent legislation thence to the House of Lords. has made good many of the defects of the Act of 1857. In 1884 the legislature interfered to prevent imprisonIn 1859 power was given to the court, after a decree ment being the result of disobedience to an order for of dissolution or of nullity of marriage, to inquire into the restitution of conjugal rights. That mode of enforcing ■existence of ante- and post-nuptial settlements, and to the order of the court was abolished, and the matter was make orders with respect to the property settled either for left to a proper adjustment of the pecuniary relations of the benefit of children of the marriage or their parents; and the husband and wife; and a respondent disobeying such r, subsequent Act (41 & 42 Viet. c. 19, s. 3) removed a doubt an order was held to be guilty of desertion without reasonwhich was entertained whether these powers could be able cause, such desertion having further given to it a •exercised if there were no children of the marriage. In similar effect to that assigned to desertion for two years or 1860 a very important change was made, having for its upwards. The effect of this provision has been that the ■object a practical mode of preventing divorces in cases suit for restitution of conjugal rights is most frequently of connivance and collusion or of misconduct of the brought for the purpose of shortening the time within petitioner. It was provided that a claim of dissolution which a wife can obtain a decree for dissolution of marriage. (a provision afterwards extended to decrees of nullity) Proceedings in the Divorce Court have shown the should in the first instance be a decree nisi, which should improvement in the law of evidence which has been not be made absolute until the expiration of a period then effected with regard to other legal proceedings. The Act fixed at not less than three, but by subsequent legislation of 1857 made an inroad on the former law, which proenlarged to not less than six, months. During the interval hibited evidence being given by parties interested in which elapsed between the decree nisi and such decree the proceedings, by allowing a petitioner (sec. 43) to be being made absolute, power was given to any person to called and examined by order of the court, absolving intervene in the suit and show cause why the decree such petitioner, however, from the necessity of answering should not be made absolute, by reason of the same having any question tending to show that he or she had been been obtained by collusion, or by reason of material facts guilty of adultery. In the next year power was given not brought before the court; and it was also provided to the court to dismiss any person, with whom a party that, at any time before the decree was made absolute, the to the suit was alleged to have committed adultery, from Queen’s Proctor, if led to suspect that the parties were acting the suit if there should not appear to be sufficient eviin collusion for the purpose of obtaining a divorce contrary dence against him or her, the object being to allow such to the justice of the case, might under the direction of the person to give evidence; and in 1859 it was provided Attorney-General intervene and allege such case of collusion. that, on a petition by a wife for a divorce on the grounds This enactment (extended in the year 1873 to suits for of cruelty or desertion with adultery, the husband and nullity) was ill drawn and unskilfully conceived. The power wife were rendered competent and compellable witnesses given to any person whomsoever to intervene is no doubt as to the cruelty or desertion. A few years later, however, too wide, and practically has had little or no useful effect as in 1869, the subject was finally dealt with by repealing employed by friends or enemies of parties to a suit. The all previous rules which limited the powers to give evilimitation in terms of the express power of the Queen’s dence on questions of adultery, with the safeguard that Proctor to intervene to cases of collusion was undoubtedly no witness in any proceeding can be asked or bound to
