court, with registrars representing each branch of the jurisdiction. Appeals lie to the court of appeal, and thence to the House of Lords.
In 1884 the legislature interfered to prevent imprisonment being the result of disobedience to an order for restitution of conjugal rights. That mode of enforcing the order of the court was abolished, and the matter was left to a proper adjustment of the pecuniary relations of the husband and wife; and a respondent disobeying such an order was held to be guilty of desertion without reasonable cause, such desertion having further given to it a similar effect to that assigned to desertion for two years or upwards. The effect of this provision has been that the suit for restitution of conjugal rights is most frequently brought for the purpose of shortening the time within which a wife can obtain a decree for dissolution of marriage.
Proceedings in the divorce court have shown the improvement in the law of evidence which has been effected with regard to other legal proceedings. The act of 1857 made an inroad on the former law, which prohibited evidence being given by parties interested in the proceedings, by allowing a petitioner (sec. 43) to be called and examined by order of the court, absolving such petitioner, however, from the necessity of answering any question tending to show that he or she had been guilty of adultery. In the next year power was given to the court to dismiss any person, with whom a party to the suit was alleged to have committed adultery, from the suit if there should not appear to be sufficient evidence against him or her, the object being to allow such person to give evidence; and in 1859 it was provided that, on a petition by a wife for a divorce on the grounds of cruelty or desertion with adultery, the husband and wife could be competent and compellable witnesses as to the cruelty or desertion. A few years later, however, in 1869, the subject was finally dealt with by repealing all previous rules which limited the powers to give evidence on questions of adultery with the safeguard that no witness in any proceeding can be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless in the same proceeding such witness shall have given evidence in disproof of his or her alleged adultery. It has been held that the principles of these enactments apply to interrogatories as well as to evidence given in court.
It is a most remarkable omission in the act of 1857, especially when we remember the high legal authority from whom it proceeded, that the act nowhere defines the class of persons with regard to whom the jurisdiction of the court should be exercised. This omission has given rise to a misapprehension of the law which, though now set at rest, prevailed for a considerable period, and has undoubtedly led to the granting of divorce in several cases in which it could not legally be given. It was supposed that the court could grant a dissolution of marriage to all persons who had anything more than a casual and fleeting residence within the jurisdiction of the court; and this view, although its correctness was doubted by Lord Penzance, the judge of the divorce court, was upheld by a majority of the judges of the court of appeal in the case of Niboyet v. Niboyet (4 P. D. 1). It was supposed that such residence gave what was termed a matrimonial domicile. But this view was undoubtedly erroneous as regards dissolution of marriage, although probably correct as regards judicial separation, and the true view is no doubt that indicated with great learning and ability by Lord Watson in a judgment given by him in the privy council in the case of Le Mesurier v. Le Mesurier (1895, App. Cas. 517), that the only true test of jurisdiction for a decree of divorce altering the status of the parties to a marriage is to be found in the domicile of the spouses—that is to say, of the husband, as the domicile of a wife follows that of her husband—at the time of the divorce. Domicile means a person’s permanent home, the place at which he resides with no intention of making his home elsewhere, and, if he leaves it, with the intention of returning to it.
It is now also clearly recognized as the law of England that the English courts will not recognize a divorce purporting to be made by a foreign tribunal with regard to persons domiciled in England. For a considerable time doubt appears to have clouded the law on this subject. In a famous case known as Lolley’s case, decided in 1812, the judges of England (the point arose in connexion with a criminal charge) unanimously held “that no sentence or act of any foreign country or any state could dissolve an English marriage a vinculo matrimonii for grounds on which it was not liable to be dissolved a vinculo matrimonii in England.” This case has been frequently understood as deciding that a marriage celebrated in England cannot be dissolved elsewhere, and on this point the courts of Scotland differ from the view supposed to be taken by the English judges. But the matter has been fully explained in one of the most masterly of Lord Hannen’s judgments (Harvey v. Fairnie, 5. P. D. 154), afterwards upheld by the House of Lords in 1882 (8 App. Cas. 43); and it is now clear that while the parties are domiciled in this country no decree of any foreign court dissolving their marriage will be recognized here, unless it proceed on the grounds on which a divorce may be obtained in this country, and even the exception just mentioned appears to rest rather on reasoning and principle than on the authority of any decided case. This principle received the highest sanction in the prosecution of Earl Russell for bigamy before the House of Lords (1901), in which it was held that, where a divorce had been refused him in England, an American divorce would not relieve a man from the guilt of marrying again.
Summary Proceedings for Separation.—The legislature has sought to extend the relief afforded by the courts in matrimonial causes by a procedure fairly to be considered within the reach of all classes. In 1895 an act was passed which re-enacted in an improved form the provisions of an act of 1878 of similar effect. By the act of 1895 power was given to a married woman whose husband (1) has been guilty of an aggravated assault upon her within the Offences against the Person Act 1861, or (2) convicted on indictment of an assault on her and sentenced to pay a fine of more than £5 or to imprisonment for more than two months, or (3) shall have deserted her, or (4) been guilty of persistent cruelty to her or wilful neglect to maintain her or her infant children, and by such cruelty or neglect shall have caused her to leave and live apart from him, to apply to a court of summary jurisdiction and to obtain an order containing all or any of the following provisions:—(1) that the applicant be not forced to cohabit with her husband, (2) that the applicant have the custody of any children under sixteen years of age, (3) that the husband pay to her an allowance not exceeding £2 a week. The act provides that no married woman guilty of adultery should be granted relief, but with the very important proviso, altering as it does the rule of the common law, that the husband has not conduced or connived at, or by wilful neglect or misconduct conduced to, such adultery. The provisions of this act[1] have been largely put in force, and no doubt to the great advantage of the poorer classes of the community. It will be observed that the act is unilateral, and affords no relief to a husband against a wife; and the complaint is often heard that no misconduct of the wife, except adultery, relieves the husband from the necessity of maintaining her and allowing her to share his home, unless he can obtain access to the high court.[2]
Separation Deeds.—Although nothing in the development of the law of divorce has tended to give to married persons the right absolutely to dissolve their marriage by consent, and, on the contrary, any such agreement would be held to be strong evidence of collusion, the view of the Church expressed in the ecclesiastical law has been entirely departed from as regards agreements for separation. Such agreements were embodied in deeds, and usually contained mutual covenants not to sue in the ecclesiastical courts for restitution of conjugal rights. The ecclesiastical
- ↑ It is to be noted that by a decision of the court of appeal in Harriman v. Harriman in 1909, where a wife has been deserted by her husband and has obtained a separation order within two years from the time when the desertion commenced, she loses her right to plead desertion under the Matrimonial Causes Act 1857, and is therefore not entitled to a divorce after two years’ desertion, upon proof of adultery. See also Dodd v. Dodd, 1906, 22 T. L. R. 484.
- ↑ In 1909 a Royal Commission was appointed to inquire into the law of divorce, with special reference to the position of the poorer classes.
