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as sins in the present generation. It is impossible to fix a uniform continuing standard for many of our motives and actions. It is equally difficult to determine the exact limits of moral conduct. Even in important questions relating to religion, very learned and pious divines have been known to differ. Let us, therefore, eliminate the religious aspect entirely, and this may be done on sufficient grounds, because granting of divorces is an established practice. Whatever our individual views may be, divorces under a recognized practice, and subject to well-defined principles, are granted, and are legal and effective. We must accept this state of affairs as beyond our control. The only enquiry open to us, therefore, is that relating to the methods of obtaining a divorce, and the grounds upon which it should be given. In order to understand the situation more clearly, I propose to deal briefly with one or two matters which lie at the threshold, and to examine the foundation on which the fabric of marriage rests.
It is generally considered that the marriage ceremony is a contract, but in addition to this, a large proportion of the body politic treat it as sacramental in its character, and hold that the marriage tie should not be interfered with under any circumstances. As I have stated, it is interfered with by virtue of legal authority, and a discussion on any other basis is to a great extent purely academic. We must take conditions as we find them. Indeed, the subject itself which I have been asked to discuss implies the continued existence of a right to obtain a divorce, and thereby to sever the marriage relationship. Omitting, therefore, the proposition that marriage is more than a mere contract, and confining ourselves to the contention that it is partly in the nature of a contract, voluntarily entered into between a man and a woman and made legal by a compliance with existing law, the question forcibly presents itself to one’s mind in this way: Why should not such a contract be annulled just as any other legal and binding contract may be annulled by a Court of law, if the circumstances and conditions be such as to warrant the Court in so doing? I am not now dealing with the point as to what such conditions ought to be. I shall have something to say about that later on, but for present purposes I ask if any other lawful contract can be voided by legal interposition, why not this one? I shall endeavour to give reasons why it should come within the scope of the law regarding contracts generally, but it appears to me that we have first to
consider some other elements before answering the question I have just submitted for your consideration.
One element is that marriage is more than a contract. It is a status or condition of civilized social life carrying with it certain limitations and qualifications. When individuals marry, they enter on an entirely different phase of life, and are governed by a new relationship to human environment. The man is no longer a free agent. His actions are governed by new and different principles. He is not at liberty to roam at large. His duties are entirely changed, and his obligations assume a new character. Socially, he is bound to respect his wife, and properly maintain her and his family, or he must lose caste with his fellow-citizens, and may become amenable to the law. His status in certain respects with regard to women other than his wife is absolutely reversed. Even his Outgoings and incomings are circumscribed, and he finds that the perspective of his life is shifted by reason of the new condition in which he finds himself. So it is also with his wife. She no longer finds her friends as before, perhaps entirely outside the husband's circle. Her marriage has removed her to another plane, and her outlook is towards a new horizon. Many things she cannot any longer do, and many others she may now do, which were outside the sphere of spinsterhood. Both parties have drawn apart from former surroundings and have formed an entirely new relation. But for the moral law, aided by the law of the country in which they live, they might have acquired this status without the marriage law or ceremony at all. Now, if this condition in which they find themselves becomes intolerable, why should they not be restored to their original position? Does the contract make it any the more imperative that they should be compelled to lead lives
of misery, ending in death as the only relief? They may
voluntarily separate, why not legally? They changed their status voluntarily, and without any obligation to the law in doing so. The law permits them practically to separate and live apart, as if they were unmarried, except that the restraint of the marriage tie remains, and marriage with another cannot be entered into. In other words, nearly all the practical results of single life with its so-called freedoni and relief from domestic trouble and responsibility may be obtained by an agreement between the parties. Morally and socially they are divorced, and yet they must continue to be bound to each other by a bond which requires in Canada the united power of the Senate and Commons to sever. Regarding such a state of life, it may be fairly argued that having done all the damage possible to the marriage relationship, having destroyed the peace and union of a family, and having opened the door for scandal and endangered the reputation of both parties by making a separation valid and enforceable, the law might go a step further, and as a surgeon with his knife cuts away the diseased tissue to save the limb, so might the Courts be empowered to operate on the moral and domestic relationship of husband and wife, and thereby save whatever of honour, virtue or respect might be found in the wreck of two lives.
But it will be said that the sanctity of the marriage tie must be protected. That this is right and necessary must be freely admitted. But what do you say about a case where the husband or wife, or both, have themselves degraded the marriage obligations, defiled the sanctity of the marriage relation, and rendered life unbearable and disreputable? Take the usual evidence in alimony actions, to say nothing of the graver facts in divorce cases. Open and notorious misconduct of the gravest character; cruelty, contempt and antagonism down to the minutest trifles of life; absolute want of sentiment; constant quarrelling with each other without any regard or consideration; actuated by the coarsest and most vicious feelings, and every day of life treating one or the other of them as entitled to less kindness or sympathy than a person would shew towards his dog or horse; given this not uncommon state of affairs, and then consider that such relationship may and likely will continue through many years until a tribunal beyond the Courts of law cuts the tie and gives relief to one of the parties, and perhaps to both. I do not exaggerate the circumstances to which I have referred. Judges and lawyers know the unfortunate condition in which married life sometimes finds itself. The average citizen knows but little of these matters. What comes to him is only the scandal. The suffering and inner life are not revealed until laid bare in the witness box. And knowing what we do, does it not appear to us as mere words when we hear people argue strenuously that the sanctity of the marriage tie must be maintained at all cost, notwithstanding the fact that the parties bound together by it have so degraded it as to make it the symbol of physical bondage instead of the badge of purity, and the emblem of happiness.
A strong argument in favour of divorce is, in my judgment, the danger resulting from legal or other separations without dissolution. The parties to such arrangements are practically neither married nor single. The man who leaves his wife under any circumstances, goes back to the world under a cloud, justly or unjustly, according to the facts. His future conduct in time becomes a matter of no great consequence. In many instances he leaves his country, goes elsewhere, gets an irregular divorce and marries again. So with the wife, who, neglected and forsaken, meets with so little sympathy or assistance even from her own sex, that she too degenerates owing to the want of a sustaining moral force. She may fall into straitened circumstances, temptation may become too strong, and the result is what might naturally be expected. One family legitimate, but deserted and handicapped through no fault of theirs, and two human derelicts, living irregular lives, and perhaps responsible for children who have neither name nor heritage, is the story told in most cases of the husband and wife, who ought to be absolutely and judicially separated, but who are compelled to drag along in chains which a professedly moral world says are not to be interfered with. The rich man knows nothing of the pangs of hunger and poverty. The good man knows little of the depth of degradation into which many of his fellow-men have fallen. The husband and father, whose life is one of peace and domestic happiness, cannot understand the terrible ordeal a frail, delicate and sensitive woman may have to undergo at the hands of a brutal husband, or what a husband suffers through the neglect and infidelities of a reckless wife. The evil results of such conditions are felt most keenly by those who have no means of indulging in pleasure of any kind. Engaged all day in labour or business drudgery, the return each evening to what is misnamed home, is accompanied by or is met with a repetition of violence, abuse and suspicions which have destroyed the sympathy and kindness of the earlier years of married life, if such feelings ever existed. Escape by legal means from this daily and hourly life of misery is practically impossible to people without money. Drink is indulged in as an antidote to the domestic poison, but this only aggravates the disease and often ends in crime. The rough outline of such lives is all that the world knows or sees. The sins of the erring wife or the brutality of the husband are never fully known to the public. A Divorce Court alone can shew something of the facts following an unfortunate marriage, but the whole truth of domestic unhappiness cannot in any case be fully expressed. I say, therefore, that there are many cases in which relief of a permanent character should be given. If this proposition is granted it then becomes only a matter of prudence and wisdom as to how far and on what grounds relief may be open to those whose claims come within the general class of cases deserving remedial action. It is however argued that it is better that such things should be than that the door should be opened to divorce proceedings, and it is also contended that by opening the door, the general tone of morality and the standard of married life will be lowered. The result in the United States is pointed to as evidence of this, and it is said that in that country marriage has lost its significance, and the ideals of home life have been shattered. In this connection I would like to deal with the statements so frequently made regarding the divorce laws and methods in the United States. One of the most common arguments used by those opposed to a Canadian Divorce Court is the one I have just mentioned, namely, that marriage is not only a failure in the United States, but is practically disregarded by a large proportion of the people, and that this condition has been brought about by loose divorce laws and procedure. Is this allegation correct? If so, it is entitled to great weight. What do the facts and statistics shew 2 We can arrive at no reasonable conclusion as to the proportion of divorces to marriages. It is assumed by some writers to be as one to fifteen. As to this, it is clear on examining the facts that no such proportion exists, having regard to the method of calculation adopted by such writers. In the first place, there is no record of marriages kept in at least one-half of the States, and no means of finding out the correct figures. There are hundreds of thousands of immigrants to that country every year, mostly married, of whose marriages there is no record, except in Europe, or some other continent. Under what is known as Census Reports, all judicial separations, conditional decrees, and all cases in which the marriage is declared a nullity from the beginning are included under the heading “Divorce.” And I venture to say from facts which have come before me in the course of my practice, that the number of Canadians who acquire irregular and fraudulent divorce in the U. S. is ten times greater than the total number of divorces granted