Herbert Wells - An Englishman Looks at the World

The time is fast approaching when it will be necessary for the general citizen to form definite opinions upon proposals for probably quite extensive alterations of our present divorce laws, arising out of the recommendations of the recent Royal Commission on the subject. It may not be out of place, therefore, to run through some of the chief points that are likely to be raised, and to set out the main considerations affecting these issues.

Divorce is not one of those things that stand alone, and neither divorce law nor the general principles of divorce are to be discussed without a reference to antecedent arrangements. Divorce is a sequel to marriage, and a change in the divorce law is essentially a change in the marriage law. There was a time in this country when our marriage was a practically divorceless bond, soluble only under extraordinary circumstances by people in situations of exceptional advantage for doing so. Now it is a bond under conditions, and in the event of the adultery of the wife, or of the adultery plus cruelty or plus desertion of the husband, and of one or two other rarer and more dreadful offences, it can be broken at the instance of the aggrieved party. A change in the divorce law is a change in the dissolution clauses, so to speak, of the contract for the marriage partnership. It is a change in the marriage law.

A great number of people object to divorce under any circumstances whatever. This is the case with the orthodox Catholic and with the orthodox Positivist. And many religious and orthodox people carry their assertion of the indissolubility of marriage to the grave; they demand that the widow or widower shall remain unmarried, faithful to the vows made at the altar until death comes to the release of the lonely survivor also. Re-marriage is regarded by such people as a posthumous bigamy. There is certainly a very strong and logical case to be made out for a marriage bond that is indissoluble even by death. It banishes step-parents from the world. It confers a dignity of tragic inevitability upon the association of husband and wife, and makes a love approach the gravest, most momentous thing in life. It banishes for ever any dream of escape from the presence and service of either party, or of any separation from the children of the union. It affords no alternative to "making the best of it" for either husband or wife; they have taken a step as irrevocable as suicide. And some logical minds would even go further, and have no law as between the members of a family, no rights, no private property within that limit. The family would be the social unit and the father its public representative, and though the law might intervene if he murdered or ill-used wife or children, or they him, it would do so in just the same spirit that it might prevent him from self-mutilation or attempted suicide, for the good of the State simply, and not to defend any supposed independence of the injured member. There is much, I assert, to be said for such a complete shutting up of the family from the interference of the law, and not the least among these reasons is the entire harmony of such a view with the passionate instincts of the natural man and woman in these matters. All unsophisticated human beings appear disposed to a fierce proprietorship in their children and their sexual partners, and in no respect is the ordinary mortal so easily induced to vehemence and violence.

For my own part, I do not think the maintenance of a marriage that is indissoluble, that precludes the survivor from re-marriage, that gives neither party an external refuge from the misbehaviour of the other, and makes the children the absolute property of their parents until they grow up, would cause any very general unhappiness Most people are reasonable enough, good-tempered enough, and adaptable enough to shake down even in a grip so rigid, and I would even go further and say that its very rigidity, the entire absence of any way out at all, would oblige innumerable people to accommodate themselves to its conditions and make a working success of unions that, under laxer conditions, would be almost certainly dissolved. We should have more people of what I may call the "broken-in" type than an easier release would create, but to many thinkers the spectacle of a human being thoroughly "broken-in" is in itself extremely satisfactory. A few more crimes of desperation perhaps might occur, to balance against an almost universal effort to achieve contentment and reconciliation. We should hear more of the "natural law" permitting murder by the jealous husband or by the jealous wife, and the traffic in poisons would need a sedulous attention—but even there the impossibility of re-marriage would operate to restrain the impatient. On the whole, I can imagine the world rubbing along very well with marriage as unaccommodating as a perfected steel trap. Exceptional people might suffer or sin wildly—to the general amusement or indignation.

But when once we part from the idea of such a rigid and eternal marriage bond—and the law of every civilised country and the general thought and sentiment everywhere have long since done so—then the whole question changes. If marriage is not so absolutely sacred a bond, if it is not an eternal bond, but a bond we may break on this account or that, then at once we put the question on a different footing. If we may terminate it for adultery or cruelty, or any cause whatever, if we may suspend the intimacy of husband and wife by separation orders and the like, if we recognise their separate property and interfere between them and their children to ensure the health and education of the latter, then we open at once the whole question of a terminating agreement. Marriage ceases to be an unlimited union and becomes a definite contract. We raise the whole question of "What are the limits in marriage, and how and when may a marriage terminate?"

Now, many answers are being given to that question at the present time. We may take as the extremest opposite to the eternal marriage idea the proposal of Mr. Bernard Shaw, that marriage should be terminable at the instance of either party. You would give due and public notice that your marriage was at an end, and it would be at an end. This is marriage at its minimum, as the eternal indissoluble marriage is marriage at its maximum, and the only conceivable next step would be to have a marriage makeable by the oral declaration of both parties and terminable by the oral declaration of either, which would be, indeed, no marriage at all, but an encounter. You might marry a dozen times in that way in a day…. Somewhere between these extremes lies the marriage law of a civilised state. Let us, rather than working down from the eternal marriage of the religious idealists, work up from Mr. Shaw. The former course is, perhaps, inevitable for the legislator, but the latter is much more convenient for our discussion.

Now, the idea of a divorce so easy and wilful as Mr. Shaw proposes arises naturally out of an exclusive consideration of what I may call the amorous sentimentalities of marriage. If you regard marriage as merely the union of two people in love, then, clearly, it is intolerable, an outrage upon human dignity, that they should remain intimately united when either ceases to love. And in that world of Mr. Shaw's dreams, in which everybody is to have an equal income and nobody is to have children, in that culminating conversazione of humanity, his marriage law will, no doubt, work with the most admirable results. But if we make a step towards reality and consider a world in which incomes are unequal, and economic difficulties abound—for the present we will ignore the complication of offspring—we at once find it necessary to modify the first fine simplicity of divorce at either partner's request. Marriage is almost always a serious economic disturbance for both man and woman: work has to be given up and rearranged, resources have to be pooled; only in the rarest cases does it escape becoming an indefinite business partnership. Accordingly, the withdrawal of one partner raises at once all sorts of questions of financial adjustment, compensation for physical, mental, and moral damage, division of furniture and effects and so forth. No doubt a very large part of this could be met if there existed some sort of marriage settlement providing for the dissolution of the partnership. Otherwise the petitioner for a Shaw-esque divorce must be prepared for the most exhaustive and penetrating examination before, say, a court of three assessors—representing severally the husband, the wife, and justice—to determine the distribution of the separation. This point, however, leads me to note in passing the need that does exist even to-day for a more precise business supplement to marriage as we know it in England and America. I think there ought to be a very definite and elaborate treaty of partnership drawn up by an impartial private tribunal for every couple that marries, providing for most of the eventualities of life, taking cognizance of the earning power, the property and prospects of either party, insisting upon due insurances, ensuring private incomes for each partner, securing the welfare of the children, and laying down equitable conditions in the event of a divorce or separation. Such a treaty ought to be a necessary prelude to the issue of a licence to marry. And given such a basis to go upon, then I see no reason why, in the case of couples who remain childless for five or six years, let us say, and seem likely to remain childless, the Shaw-esque divorce at the instance of either party, without reason assigned, should not be a very excellent thing indeed.