DIVORCE
The Main Facts About Divorce.—An indication of the emphasis on individual rights is furnished by the increase of divorce, especially in the United States, where the demands of individualism and industrialism are most insistent. The divorce record is the thermometer that measures the heat of domestic friction. Statistics of marriage and divorce made by the National Government in 1886 and again in 1906 make possible a comparison of conditions which reveal a rapid increase in the number of divorces granted by the courts. Certain outstanding facts are of great importance.
(1) The number of divorces in twenty years increased from 23,000 to 72,000, which is three times the rate of increase of the population of the country. If this rate of progress continues, more than half the marriages in the United States will terminate in divorce by the end of the present century.
(2) In the first census it was discovered that the number of divorces in the United States exceeded the total number of divorces in all the European countries; in the second census it was shown that the United States had increased its divorces three times, while Japan, with the largest divorce rate in the world, had reduced its rate one-half.
(3) Divorces in the United States are least common among people of the middle class; they are higher among native whites than among immigrants, and they are highest in cities and among childless couples.
(4) Two-thirds of the divorces are granted on the demands of the wife.
(5) Divorce laws are very variable in the different [States, but most divorces are obtained from the States where the applicants reside.
Causes of Divorce.—The causes recorded in divorce cases do not represent accurately the real causes, for the reason that it is easier to get an uncontested decision when the charges are not severe, and also for the reason that State laws vary and that which best fits the law will be put forward as the principal cause. Divorce laws in the United States generally recognize adultery, desertion, cruelty, drunkenness, lack of support, and crime as legitimate grounds for divorce. In the five years from 1902 to 1906 desertion was given as the ground for divorce in thirty-eight per cent of the cases, cruelty in twenty-three per cent, and adultery in fifteen per cent. Intemperance was given as the direct cause in only four per cent, and neglect approximately the same. The assignment of marital unfaithfulness in less than one-sixth of the cases, as compared with one-fourth twenty years before does not mean, however, that there is less unfaithfulness, but that minor offenses are considered sufficient on which to base a claim; the small percentage of charges of intemperance as the principal cause ought not to obscure the fact that it was an indirect cause in one-fifth of the cases.
It is natural that the countries of Europe should present greater variety of laws and of causes assigned. In England, where the law has insisted on adultery as a necessary cause, divorces have been few. In Ireland, where the church forbids it, divorce is rare, less than one to thirty-five marriages. In Scotland fifty per cent of the cases reported are due to adultery. Cruelty was the principal cause ascribed in France, Austria, and Rumania; desertion in Russia and Sweden. The tendency abroad is to ascribe more rather than less to adultery.
The real causes for divorce are more remote than the specific acts of adultery, desertion, or cruelty that are mentioned as grounds for divorce. The primary cause is undoubtedly the spirit of individual independence that demands its rights at the expense of others. In the case of women there is less hesitancy than formerly in seeking freedom from the marriage bond because of the increasing opportunity of self-support. The changing conditions of home life in the city, with the increasing cost of living, coupled with the ease of divorce, encourage resort to the courts. The unscrupulousness of some lawyers, who fatten their purses at the expense of marital happiness, and the meddlesomeness of relatives are also contributing causes. Finally the restraint of religion has relaxed, and unhappy and ill-mated persons do not shrink from taking a step which was formerly condemned by the church.
History of Divorce.—The history of divorce presents various opinions and practices. The Hebrews had high ideals, but frequently fell into lax practices; the Greeks began well but degenerated sadly to the point where marriage was a mere matter of convenience; the Romans, noted for their sterling qualities in the early days of the republic, practised divorce without restraint in the later days of the empire.
The influence of Christianity was greatly to restrict divorce. The teaching of the Bible was explicit that the basis of marriage was the faithful love of the heart, and that impure desire was the essence of adultery. Illicit intercourse was the only possible moral excuse for divorce. True to this teaching, the Christian church tried hard to abolish divorce, as it attempted to check all sexual evils, and the Catholic Church threw about marriage the veil of sanctity by making it one of the seven sacraments. As a sacrament wedlock was indissoluble, except as money or influence induced the church to turn back the key which it alone possessed. Separation was allowed by law, but not divorce. Greater stability was infused into the marriage relation. Yet it is not possible to purify sex relations by tying tightly the marriage bond. Unfaithfulness has been so common in Europe among the higher classes that it occasioned little remark, until the social conscience became sensitive in recent decades, and among the lower classes divorce was often unnecessary, because so many unions took place without the sanction of the church. In Protestant countries there has been a variable recession from the extreme Catholic ground. The Episcopal Church in England and in colonial America recognized only the one Biblical cause of unfaithfulness; the more radical Protestants turned over the whole matter to the state. In New England desertion and cruelty were accepted alongside adultery as sufficient grounds for divorce, and the legislature sometimes granted it by special enactment.
81. Investigation and Legislation in the United States and England.—The divorce question provoked some discussion in this country about the time of the Civil War, and some statistics were gathered. Twenty years later the National Government was induced by the National Divorce Reform League to take a careful census of marriage and divorce. This was published in 1889, and revised and reissued in 1909. These reports aroused the States which controlled the regulation of marriage and divorce to attempt improved legislation. Almost universally among them divorce was made more difficult instead of easier. The term of residence before divorce could be obtained was lengthened; certain changes were made in the legal grounds for divorce; in less than twenty years fourteen States limited the privilege of divorced persons to remarry until after a specified time had elapsed, varying from three months to two years. Congress passed a uniform marriage law for all the territories. It was believed almost universally that the Constitution should be amended so as to secure a federal divorce law, but experience proved that it was better that individual States should adopt a uniform law. The later tendency has been in this direction.
At the same time, the churches of the country interested themselves in the subject. The Protestant Episcopal Church took strong ground against its ministers remarrying a divorced person, and the National Council of Congregational Churches appointed a special committee which reported in 1907 in favor of strictness. Fourteen Protestant churches combined in an Interchurch Committee to secure united action, and the Federal Council of Churches recorded itself against the prevailing laxness. The purpose of all this group action was to check abuses and to create a more sensitive public opinion, especially among moral and religious leaders.
In Great Britain, on the other hand, divorce had always been difficult. There the strictness of the law led to a demand for a study of the subject and a report to Parliament. The result was the appointment of a Royal Commission on Divorce and Matrimonial Causes, consisting of twelve members, which investigated for three years, and in 1912 presented its report. It recognized the fact that severe restrictions were in force, and a majority of the commission regarding marriage as a legal rather than a sacramental bond, favored easier divorce and a single standard of morality for both sexes. It was proposed that the grounds for legal divorce should be adultery, desertion extending over three years, cruelty, incurable insanity after confinement for five years, habitual drunkenness found incurable after three years, or imprisonment carrying with it a sentence of death. A minority of the committee still regarding marriage as a sacrament, favored no relaxation of the law as it stood.
82. Proposed Remedies.—Various remedies have been proposed to stem the tide of excessive divorce. There are many who see in divorce nothing more than a healthy symptom of individual independence, a revolt against conditions of the home that are sometimes almost intolerable. Many others are alarmed at the rapid increase of divorce, especially in the United States, and believe that checks are necessary for the continued existence of the family and the well-being of society. The first reform proposed as a means of prevention of divorce is the revision of the marriage laws on a higher model. The second is a stricter divorce law, made as uniform as possible. The third is the adoption of measures of reconciliation which will remove the causes that provoke divorce.
The proposed laws include such provisions as the prohibition of marriage for those who are criminal, degenerate, or unfitted to perform the sex function; the requirement of six months' publication of matrimonial banns and a physical certificate before marriage; a strictly provisional decree of divorce; the establishment of a court of domestic relations, and a prohibition of remarriage of the defendant during the life of the plaintiff. These are reasonable restrictions and seem likely to be adopted gradually, as practicable improvements over the existing laws. It is also proposed that the merits of every case shall be more carefully considered, and the judicial procedure improved by the appointment of a divorce proctor in connection with every court trying divorce cases, whose business it shall be to make investigations and to assist in trying or settling specific cases. Experiment has proved the value of such an officer.
83. Court of Domestic Relations.—One of the most significant improvements that has taken place is the establishment of a court of domestic relations, which already exists in several cities, and has made an enviable record. In the early experiments it seemed practicable in Kansas to make such a court a branch of the circuit and juvenile courts, so arranged that it would be possible to deal with the relations of the whole family; in Chicago the new tribunal was made a part of the municipal court. By means of patient questioning, first by a woman assistant and then by the judge himself, and by good advice and explicit directions as to conduct, with a warning that failure would be severely treated, it has been possible to unravel hundreds of domestic entanglements.
84. Tendencies.—There can be no question that the present tendency is in the direction of greater freedom in the marriage relation. Society will not continue to sanction inhumanity and immorality in the relations of man to woman. Marriage is ideally a sacred relation, but when it is not so treated, when love is dead and repulsion has taken its place, and especially when physical contact brings disease and suffering, public opinion is likely to consider that marriage is thereby virtually annulled, and to permit ratification of the fact by a decree of divorce. On the other hand, it is probable that increasing emphasis will be put on serious and well-prepared marriage, on the inculcation of a spirit of mutual love and forbearance through the agency [80]of the church, and on the exhaustion of every effort to restore right relations, if they have not been irreparably destroyed, before any grant of divorce will be allowed. In this, as in all problems of the family, the spirit of mutual consideration for the interests of all concerned is that which must be invoked for a speedy and permanent solution. Education of young people in the importance of the family as a social institution and in the responsibility which every individual member should feel to make and keep the family pure and strong as a bulwark of social stability, is the surest means of preventing altogether its dissolution.
READING REFERENCES
"Report on Marriage and Divorce," 1906, Bureau of the Census, I, pages 272-274, 331-333.
"Reports of the National League for the Protection of the Family."
Post: Ethics of Marriage and Divorce, pages 62-84.
Dealey: The Family in Its Sociological Aspects, pages 96-108.
Howard: History of Matrimonial Institutions, III, pages 3-160.
Willcox: The Divorce Problem.