No man can obtain a divorce except by a terribly
expensive process in the High Court at a minimum
charge of forty pounds. This means a denial of justice
to the vast bulk of the male population. Any woman, by
the asking for it, can get a summary separation and
confiscation of her husband’s property, and an order for
her maintenance out af his earnings from the nearest
police court. Recent Statutes confer this privilege.
This process, which costs only a few shillings, the
husband has to pay for.
…
A woman can habitually repudiate her duties, neglect
her children, pawn her husband’s and children’s clothes,
waylay her husband at his work, and disgrace him be-
fore his friends, procure his dismissal, assault him, and
there is no remedy open to the working man. To tell
him that he can appeal to the Divorce Court at a cost of
forty pounds, is a piece of savage and scornful irony.
He might as well be told that he can, if he has the
money, promote a private Act of Parliament, at the cost
of some thousand pounds.
…
A woman can have her husband arrested and sent to
gaol if he leaves her, even though her own violence and
cruelty led to his flight. The husband gets no assist-
ance from the law if his wife deserts him.
The method in which this privilege has been worked
out was simple enough. It consisted in abolishing all
the husband’s control over the wife’s actions and
property, and, on the other hand, retaining all the wife’s
power of legal compulsion on the husband, with added
powers.
These changes have practically come in during the
period since 1857, when a secular court for divorce was
established. Under the earlier law, prior to, and long
after the Reformation, ecclesiastical censure restrained
the deserting wife. But the secular common law also
lent its aid to the husband. He could prevent her by
force from leaving his house, and could bring her back
if she had escaped. More, he had an action for
“harbouring” against any of her relations or strangers
who assisted her in straying away–as late as George
III. a husband’s action for damages on this ground was
successful.
An exception to the general rule, and even this was of
doubtful validity, was introduced under Henry VIII. A
wife could be assisted to leave her husband’s house if
she were journeying to the Bishop’s Court to seek a
separation.
But the latest feminist rulings of the judges have quite
swept away such fine distinctions as those of 1857.
(1) By their fiction of “cruelty”–anything a
husband does being “cruelty”–they have enabled
any woman who likes to leave on a pretended
excuse.
(2) By procuring the passing of an Act (Lord
Chancellor Cairns’ Act, 1884) the Courts got rid of
their theoretical duty of ordering a wife to be
imprisoned for refusing to obey an order of
restitution of conjugal rights. Nothing in the way
of compulsion by restraint of person or property is
to be applied to the wife. But by a cynical stroke
this Act provides that if a husband refuses to obey,
his property is to be confiscated. And, more out-
rageous than all, the wife’s power to procure the
arrest and imprisonment of the husband by the
magistrate’s Court is left untouched.
A case in which the wife of a clergyman caused her
husband to be arrested on board a ship going to
America, and sentenced to hard labour by alleging his
desertion, deserves special notice. True that the clergy-
man, having means, could appeal to a higher Court and
have the iniquitous sentence quashed. But the working
man would have had to serve his allotted term in the
prison cell. And no one has ever suggested that this
wife should be punished. (See the case of the Rev.
Peter MacDonald Neilson, June, 1894.)
The notorious Jackson case furnished another pic-
ture. Here a woman is upheld by the Court of Appeal
in deserting her husband and condemning him to life-
long celibacy. He has absolutely no remedy against
her. If she commits any civil injury against any one, he
can be sued. If he should live with any other woman,
Mrs. Jackson can get a portion of the property confis-
cated and settled on herself. She is not obliged to ask
for a divorce, she can still keep him bound by limiting
her demand to a judicial separation.
The criticisms which some lawyers have made on this
decision are wide of the mark. It was quite in harmony
with the later current of authority, though in violent
conflict with the settled Common Law of last century.
Tie the man and let the woman free, is the prevalent
judicial theory of to-day.
Though the judges could obtain the passing of Lord
Chancellor Cairns’ Act, 1884, freeing the wife from
imprisonment for desertion, there has been no sugges-
tion of promoting an Act to enable a man in Mr.
Jackson’s position to obtain a divorce.
So enamoured have they become with the new doctrine
of feminine predominance in the relation of marriage,
that the judges of the House of Lords have actually
extended to Scotland their theory of tying the man and
letting the woman free. For over three centuries the
law of Scotland has provided that desertion for four
years on the part of either spouse is ground for absolute
divorce, with right of second marriage. For all that
long period the Act has been found most salutary in
effect. Now the judges in the House of Lords, in the
year 1894, have practically repealed it. They have
refused to grant a Scotch litigant divorce, although his
wife has deserted him for over four years, and at the
same time abducted his child. They allege, as the
ground for this astonishing “new readings” of the law,
that the husband did not really want her to return. As
this can be alleged in every case in which a husband
does not slavishly implore a shrew to come back, the
result is that when a vindictive woman wants to prevent
the man remarrying, she can successfully resist his claim
for divorce. This salutary Act of Scots Parliament has
been offered up as a whole burnt offering on the altar of
the dominant female.