VFAMILY LAW
Under family law I group marriage, divorce, guardianship, and inheritance, and I shall assume, for the purposes of my forecast, that the family will continue to exist as an institution and may even be taken more seriously by the legislators of the future than by the legislators of to-day, whose collectivist bias has taken the form of trying to abolish every relationship of the individual except his relationship to the State as citizen. I am inclined to think that marriage laws will become more rational, that legitimation by subsequentmarriage will become law in England and Wales as well as in Scotland, that there will be a law of adoption as on the Continent, and that there will be a system of divorce by consent recognized as such as well as divorce for matrimonial offences.
There should be no difficulty as to a law of adoption on Continental lines. If anyone chooses to adopt a child and expend toil and money on training and educating the child, that person should have some security for quasi-parental control. If industrial schools are entitled to disregard parental emotions, why should not benevolent individuals, be rewarded for exertions made with the original consent of the parent?
Legitimation by subsequent marriage presents no difficulty except as to thequestion of adulterine bastardy. At first sight it seems difficult to allow legitimation except when the parents of the bastard were originally capable of marrying; but considering the shocking anomalies of divorce in England and Wales there is a strong case for legitimating the adulterine bastard when possible and it has been done in some British colonies. A compromise may be reached by limiting the period of such legitimation to, say, twenty-five years from the date of the Act.
Any measure of divorce law reform for England and Wales will merely bring the country into line with Europe on the one hand and the Colonies and the United States on the other. I see the divorce court of the future in two departments. The first departmentwill deal with divorces by consent, protect all parties from rash and heedless decisions, adjust question of property, and deal with the problems of guardianship. I imagine that divorce by consent will be subject to a time limit of two or three years, and that all separations, whether by decree or by voluntary deed, will mature into divorces after a certain period of time. I hope that in the future divorce by consent will have a time limit as opposed to the present system under which there is none.
The second department will deal with contentious cases in which injury has been done. The judge will make every preliminary effort to reconcile the parties, and the strictest privacy will be observed, according to theContinental custom and to the old usage of nullity suits in England where impotence was alleged. The present system of divorce (which is a sort of surgical operation) is carried out rather like a surgical operation without anæsthetics or aseptic precautions, in deference to religious prejudice.
As regards the matrimonial offences for which divorce would be granted, cruelty and desertion will certainly be included among them, and probably imprisonment in the case of criminal lunatics. If the future development of the criminal law results in more permanent detention, then public sentiment will not be so much opposed as it is now to the possibility of divorcing a spouse condemned to a long sentence of imprisonment. The same attitudewill obviously prevail in regard to the detention of criminal lunatics, and probably also all other lunatics where the disease has been continuous for five years and is pronounced by experts to be incurable. But presumably the lunacy laws will be thoroughly revised and safeguarded before any divorce for lunacy becomes possible.
In regard to the financial side of divorce, it is to be hoped that any alimony given to an innocent wife may at least be reducible if she marries a wealthy man, and that among the poor the innocent wife will be given a far better chance of enforcing her claim for alimony than she is given now. American practice may profitably be followed on this point. Whether public sentiment will continue to approve theaward of damages to a husband for the loss of his wife remains to be seen. This may be justified in some cases, as, for instance, where the wife supports the husband or is a rich woman and her breach of the marriage contract involves him in pecuniary loss; or where the children, who in such circumstances are already prejudiced by losing the joint care of both parents, are also likely to lose financial advantages by reason of their mother marrying another man. In such a case it does not seem unfair that the co-respondent should make some provision for them if he is in a position to do so.
There remains the question of guardianship, whether in relation to marriage or divorce, and there seems little chance of this being altered, exceptthat possibly a mother, and especially a mother guilty of adultery, may have more power in regard to her children than she has now. Modern opinion is certainly tending to the view that the act of adultery is not always incompatible with maternal love and efficiency and that an unchaste mother is at least preferable to a cruel or mentally deranged mother.
In regard to poor persons, I deal with the question generally in a later chapter. But while on the subject of divorce, I suggest that justice must one day be brought to the poor man’s door either through the county court or the police court or some other court. If police court separation orders are to mature into divorces, the police magistrate is obviously the best person todecree a divorce at the end of the period in question, and possibly he could even hear defended cases. But trustworthy observers state that the police magistrate is often quite unjust to a husband accused by a wife, either because he thinks that all wives are in the right or because the husband is sulky and verbose. The magistrate could, of course, do his work very much better if both parties were legally represented, and if police court solicitors ever form a rota to assist poor persons after the Scottish fashion, better justice may be done.
I fancy, however, that the problem may be solved as it is in the United States, by establishing courts of domestic relations. Apparently, these courts do their work at comparativelylittle expense; and this work is by no means confined to matrimonial disputes. The judges do, in fact, reconcile many husbands and wives and adjust disputes that might otherwise ruin many homes; but they also step in to regulate questions of guardianship in cases where regulation is required. The lay reader may possibly regard this as undue interference with the institution of the family; but any lawyer acquainted with the beneficent jurisdiction of the Chancery judges where minors are concerned, would naturally wish the poor to have the same advantages in this respect as the rich, and I, therefore, imagine that within fifty years courts of this description will not only have divorce jurisdiction but will also have thesame powers as the Chancery judges now have over a ward of court. I shall deal with this question more fully in a later chapter.