Below is printed a criticism of the 1936 Marriage Bill which has just been circulated by the Westminster Catholic Federation.
The Catholic Herald has already examined and given its views upon Mr. A. P. Herbert's measure, and in the course of a close examination of the bill it urged upon its readers, several months ago (November 27, 1936) the need that " those who have received authoritative teaching on the permanence of the moral law and the greatness and seriousness of marriage should bear witness to it" In last week's issue it was necessary to criticise sharply the vote in the Upper House of Convocation by which an overwhelming majority of the Anglican bishops rejected a motion to refuse Communion to those who disobey what still remains the Church of England's law in this matter.
Whilst it is recognised that certain clauses I are beneficial to the institution of marriage, particularly Clause 1 which ensures that the matrimonial contract shall endure for at least live years, the Bill is open to the same objections as any of the similar measures introduced during the last few years. The objections are, firstly, to the lack of principle involved, and, secondly, to the details proposed.
(I) The legislature will not be much influenced by the teaching of the Catholic Church, as such, beyond recognising, perhaps, with Lord Buckmaster, when he introduced a similar Bill in 1924, that the Catholic Church possesses the armour of reason, argument, logic, persuasion and authority. However that may be, Catholic principles differ fundamentally from those upon which the Bill is based.
Valid marriage between two Christians is a sacrament, and the union once consummated is of God's making, dissolved only by death. F.cclesiastical nullity decrees are in no sense equivalent to divorce, just as Clause 5 is radically different from Clause 2. The existence of rules and impediments safeguarding marriage do not lessen its stability and sanctity.
(2) But even though these principles may not be universally accepted, nevertheless this is a Christian country with an established Christian Church, a fact which is recognised in Clause 11 of the Bill. And, therefore, whilst possessing no mandate to speak for Christians of this country who owe no allegiance to the Catholic Church, and who rely entirely on the New Testament as their rule of faith, we recall that the whole course of biblical investigation in recent years has tended to the point of emphasising that the mind of Christ Himself was,for indissoluble marriage.
Whatever interpretation is to be put on the difficult texts of Matthew xix, there is no authority whatever in the text of the New Testament, even of a doubtful character. ,permining divorce for any other reason than adultery.
Attacking the Family
(3) Independently, however, of purely religious considerations, it is certain that any further relaxation of the law will endanger the public welfare by attacking
the family. The Majority Report (1912) accepts as a principle that marriage is normally a monogamous and life-long union, and the proponents of the Bill hope that it will strengthen the institution of marriage. But the inevitable sequel of multiplying grounds for divorce must ultimately be an abrogation of the principle of lifelong monogamous union. If marriage is to be dissolved whenever causes exist or arise which are likely to disturb married life, many such causes may be enumerated in addition to those mentioned in Clause 2. Why should not other diseases be added to mental disease, other moral failings to drunkenness, incompatibility of temper to desertion, lesser periods of imprisonment to a life sentence?
In every country which has introduced divorce, statistics show an alarming increase as the years pass by. The danger consists not only in the facility of abusing the law on the part of some individuals, but in the creation of a habit of mind on the part of the people in general, tending gradually towards divorce by mutual consent.
The Majority Report does not want divorce by consent; the sponsors of the Bill do not want it; no one wants it except a few fanatics. But the proposed exceptions " cannot be viewed apart from the principle upon which they are founded, and the consequences which logically follow. and have, in fact, followed upon its adoption. Those proposals, if carried out by legislation, would lead the country to a downward decline, on which it would be vain to expect it to stop half-day' (Minority Report, p. 185).
The Hard Case
(4) It is a fallacy to suppose that increased facilities for divorce will be a remedy for the hard cases of marriage failure. With easier divorce people lose their esteem for the marriage bond, become less careful in contracting marriage, and less generous in tolerating mutual defects.
Hard cases exist in a progressive and strong modern state such as Italy, where nevertheless divorce is not tolerated. Here the strength of the nation is rightly considered to lie in the strength of its family life, and the indissolubility of marriage is defended with the same enthusiasm as the integrity of the State, for the two are closely connected.
The alternative is between maintaining the institution of marriage for the interests of the whole community, and destroying it for the relief of individuals.
(I) In addition to the violation of an accepted principle of monogamy, inherent in any law permitting divorce, the details of this measure, whilst giving relief to some, will fall heavily on others who have as much right to legal protection. Those who, for conscientious reasons, are unable to accept divorce, may be denied the relief of separation. For the knowledge that separation may be converted into divorce (Clause 4) will prevent many from obtaining the relief of separation to which they are entitled.
One of the Majority Commissioners, Mrs. H. Tennant, made a special statement dissociating herself from the rest on this point: " I cannot feel that the guilty party should have any power to impose upon the innocent a remedy against which he or she may have conscientious objections" (Majority Report, p. 169).
What is "Cruelty"?
(2) The added grounds for divorce in Clause 2, interpreted in Clause 16, are open to grave objection. " One of the strongest reasons for not permitting desertion and cruelty as additional grounds for divorce, is the ease with which they may be utilised for the dissolution of marriages of which the parties have grown tired " (Minority Report, p. 185). This observation is, in part, supported by Lord Merrivale (former President of the Divorce Division of the High Court):
" Probably nothing in the law is snore absolutely undefined than ' cruelty.' Words, looks. acts not involving personal violence; all of them may be evidence of cruelty in the sense in which that term is used in matrimonial causes . . If what is called cruelty is to be made a by-way for divorce. some remarkable developments may he looked for " (Marriage and Divorce, p. 59). The majority of t•xperts on mental disease Vit`l'I` opposed to insanity as a ground for divorce (ifinority Report. p. 182). Who is to pronounce it incurable, and if mental vigour returns what is to be the plight of the victim?
" Lillie wonder that in past times those who have had to form definite opinions on. this painful topic ha 1'0 more often than not concluded—with regret it may be—that when a man and woman tike one another for hushand and wile, if ix, us the marriape serrice says, for better for poorer, in siekness and in health, .till death do us part (Merrivale, op. ell_ p. 70).
" In these days. drunkenness and addletion to drays are more at/tellable to treatment than they were ut the time when the Majority -Report was drawn up. Eyen in the ease of other contracts it is difficult to arrange 45 dissolution on the grounds of the insanity or drunkenness of one of the parties. " To make it eauder to break the marriage Lond than to dissolve a civil con. tract of employment would supply a strange commentary upon our icilys of " (Merrivale. op. cit., p. 60).
(3) The proposed measure offers no effective remedies against collusion; on the con trary, Clause 7 removes the existing one. It is the opinion of every responsible person brought into contact with the divorce laws that some remedy is urgently demanded for preventing the evil of arranged divorces. One deterrent might be, as Lord Merrivale suggests, for some public penalty to be inflicted on the person who breaks up the home of another, in addition to the lability of paying damages and costs (op. cit., pp. 58, 59).
(4) In view of the fact that refusal to permit marital intercourse is to be reckoned equivalent to desertion (Clause 16) as a ground for divorce, and a refusal to consummate marriage a ground for nullity
(Clause 5), the terms " marital intercourse " and " consummation of marriage " require careful definition. Is it the mind of the authors of the Bill to regard the use of con
traceptives as marital intercourse? If so. it will be possible to have a marriage dis solved or annulled because one party refuses to have intercourse in a manner incompatible with the primary purpose of marriage.
What impressed the Minority Commis sioners, in these and other proposals, was the lack of all finality in them, and the complete lack of any reasonable principle which could be accepted as a guiding rule in legalising divorce. People who have the good of the nation at heart are entitled to ask that our laws should be based on reason, not on sentiment. Where is the process to end, and what is to become of the institution of marriage, if, at the demand of a few extremists, its permanence and stability are gradually destroyed?
Lord Merrivale, whilst giving a guarded approval to certain additional grounds for divorce, insists on the necessity of considering them with a proper regard for the institution of marriage. His valuable book begins and ends on this note:
" There is clamour of individuals—not of the people at large—for systematic relaxations of the old law. There are laud-voiced dogmatists who proclaim their theories in apparent ignoranee of all that marriage involves. An enlightened community. though, cannot consciously permit tampering with the foundations of its well-being.
" Forty-five millions of population — figure towards which we seem to be eteadily advancing — would mean English households numbering some nine millions; and it
iS for these in of households, with their membership of fathers and mothers and children. that the safeguards of marriage must be upheld. The fact of marriage is their foundation. and it is hard to think that in any large proportion of them divorce can be regarded otherwise than with concern. if not with loathing. . . .Let us bear ill mind that marriage is an outstanding means of benefit, and that divorce is its enemy. So may we be guided in the right way " (ees.cit., PP. 10. 71)