This Scribbler essay competition winning entry was from October 1934. I will let Doris explain in her own words the curiosities and absurdities in UK divorce law at that time.  It is very likely that Doris and her writing circle were familiar with the 1934 satirical book “Holy Deadlock” by A. P. Herbert, at the time of her writing this piece.  The novel "Holy Deadlock"  played on the various inadequacies and absurdities of the contemporary divorce law, and was reported as being a major element in the popular debate at the time regarding changes to the divorce laws. This is probably unsurprisingly, as its author  went on to become the Independent MP for the Oxford University constituency in November 1935, and subsequently worked with the Conservative Party MP for Evesham, Rupert de la Bère, to advance his private members bill that went on to become the  Matrimonial Causes Act 1937. This widely supported act extended the grounds for divorce and made the process more equitable between the sexes and implemented many of the recommendations from the 1912 Royal Commission on UK divorce law that had been omitted from its 1923 review.

The test cases examined, and the suggestions for pre-marriage arrangements and procedures made by Doris in her essay, read as if they were informed by her experience volunteering at the local Mothercraft and Infant Welfare Centre.

Divorce and Commonsense 

"Can two walk together; except they be agreed?” (Amos 3.3) 

t is a truism that the law has always lagged behind public opinion. Our grandfathers, kinder hearted than their legislation, shrank from sending mere children to the gallows, and unblushingly returned verdicts of ‘not-guilty’ until they forced the restriction of capital punishment. Today, the law of divorce is equally in disrepute. It has become hopelessly entangled with fraud and hypocrisy and is dally being evaded. Convinced that the time is ripe for a complete overhaul of our Marriage Code and for a new statement on marriage itself, the public is pressing for the necessary legislation.

Our Marriage Code bears some resemblance to that extraordinary instrument of comments, a Lloyd's policy. Drafted in the days of sailing ships, it has been preserved, with all its obsolete phraseology, and made to serve the needs of modern liners by additions and amendments innumerable, the whole being only comprehensible when viewed historically. So our Marriage Code, and the Marriage Services of the Churches, both belong to a day when marriage was essentially a transfer of property. 

"Who giveth this woman?" was the priest's question, and the father,or other responsible man, handed over the portion of female property to its new master. Master, in very truth, for was she not made to swear obedience to him? And, with her, went her rights in herself, in her own body and her own property. 

It would be foolish to maintain that this interpretation of marriage was, in itself, wrong. In the world of the Middle Ages, with its warring barons, and for many a generation after, a defenceless woman was anyone's prey. It was essential that her father should hand her to the care of her husband and equally essential that her property in the form of lands or goods should be in the charge of a man able to protect it. The bride would have little objection to a bargain that assured her protection from enemies and gave her a home ant children of her own.

 The laws of marriage having been drawn up on this basis, the English people with their reluctance to make any changes were content to let them remain so. Gradually the condition of the country became one of peace and with the coming of the industrial Revolution, a great change began in the home life of the people. ‘The women, no Longer slaves of the home found work in the new mills and factories. This meant that growing daughters went out to work and found themselves able to compete with their brothers. Deep down in the hearts of women was born that strange new belief? in themselves as individuals and not only as the complement of man. To the horror of fathers and husbands, the phrase “woman's rights" was whispered. The daughters of the wealthier classes clamoured to be educated as their brothers were, and slowly this movement grew which, finding expression in the last generation in a fight for the vote, is today forcing public opinion to revise the whole conception of the relationship of men and women. 

Since in the past, the marriage contract was essentially a transfer of property, it followed that, divorce was designed for the benefit of the property owner.. should his property become damaged he could then invoke the law to rid himself of it. In other words, if the husband found his wife guilty of infidelity he could, by cumbrous process of Act of Parliament, dissolve his marriage and be free of her. Like the Lloyd's policy to which we have referred, this to the rock-bottom basis of all our divorce legislation. All subsequent enactments have only been in the nature of extensions and corrections till the whole has become an unwieldy instrument which needs, not further additions but cancellation and redrafting on the lines of modern thought. 

As has been mentioned, up to 1857, although it was possible to obtain a judicial separation, there was no possibility of divorce without obtaining a special Act of Parliament. It therefore followed that the relief was only available to the wealthy, and that divorce was confined to the small circle of the aristocracy. The rapidly growing middle classes were financially unable to obtain relief. The Matrimonial Causes Act passed in 1857, gave power to a section of the Supreme Court to deal with matters of divorce as well as of judicial separation and in fact, put into its hands ol) disputes of a matrimonial nature, though later, many of those were transferred to the Courts of Summary Jurisdiction. This empowering of the Court to grant divorce should have made it much simpler but its operation was hampered by two main considerations. The first was that the expense of legal procedure was still so high as to debar the whole of the poorer classes, and the second that the grounds for divorce were still based on the old idea of marriage as a property contract and yet by strange anomaly, conditions were imposed which would have been intolerable in any other business contract. 

Since the law was man made, and still had the rights of the man as its first consideration, a divorce could be granted to any man upon proof of the infidelity of his wife, the idea being that he had suffered damage to his property, and was therefore justified in ridding himself of it. But as there could be no question of the woman owning her husband, his infidelity alone would not entitle her to divorce. She must prove cruelty, desertion, or other second cause. Not only was it made much harder for a woman to obtain her freedom by reason of the double proof but, since she was frequently economically dependent on her husband, and by Law her possessions were his, she has no means of meeting the cost of her action. Even should she be able to raise the amount, public opinion still upheld the doctrine of the double standard of morality and preaching that it was a woman's duty to turn a blind eye to her husband's weaknesses, had neither sympathy . nor charity for the wife who exposed them publicly. 

The work of women like Josephine Butler - who in their lifetime were exposed to insult and condemnation for their “unladylike” interest in their weaker sisters gradually undermined the belief in the double standard and, by 1909, when public opinion had forced parliament into appointing a Royal Commission to enquire into the. grounds for divorce, it had been accepted  that so far as marriage is concerned, infidelity of either party is of equal importance. Though the Commission made a series of recommendations covering a wide ground the only one which met with general support was. that divorce might be. granted for adultery, irrespective of sex, and this was incorporated in the law. 

It was the removal of an obvious injustice, but again it was only an accretion, It assumed now that each party to the contract had a right in the body of the other, but, as we shall see, it still differentiated this contract from all other property contracts by strange conditions. 

 If Brown and Jones enter into partnership and Brown embezzles or otherwise misconducts himself, Jones will be justified in cancelling the bond of partnership, even though a repentant Brown wishes to continue it. But should Brown and Jones both wish their contract cancelled, the matter is simplified by their mutual consent. Not so with the contract of marriage. Should - John Jones and Mary Brown contract a partnership and Mary Brown misconduct herself, John Jones can, and with much delay and difficulty — end on the payment of large sums cancel his contract with her. But should he himself have proved such an unsatisfactory partner that Mary is willing, and even anxious to be rid of him too, then the matter is fraught with complications. For two people to wish to be parted is in itself cause for suspicion and, unless John and Mary have exceptional luck, they will find themselves many pounds the poorer but still irretrievably tied together in a hated partnership while a solemn judge lectures them on the sin of collusion,

It reads as farce but, lived out by two suffering people, it is real tragedy, and it is because of this that thinking men and women are pressing for a new outlook on marriage and a new code based on it. And here let us say that the attitude of the Churches to the question of divorcee is outside the stops of this essay. Each has, no doubt, its own interpretation of the relationship  of the sexes, and of the obligations of marriage and has a right to demand that those whom it unites by its own rites and in its own buildings should accept such interpretation. But this is of no concern of the state. To make a legal marriage, no religious ceremony is necessary, and the civil marriage before a registrar merely demands the swearing these two promises before an accredited registrar:

“I do solemnly declare that I know of no lawful impediment why I,  A.B may not be joined in matrimony to C.D”  and “I call upon these persons here present to witness that I, A.B. do take the C.D. to be my Lawful wedded wife (or husband).” 

There is, in this no binding for life or eternity, no question of belief in marriage as a God given sacrament, nothing one would say, to distinguish this from any other contract of partnership. And yet, when the question of dissolving this simply constructed partnership arises the state intrudes questions of morality and, by the help of that quaintly obsolete person the Ring's Procter, points out that in the eyes of the law divorce is the punishment of a guilty party and is nullified rather then expedited by double guilt, or by mutual desire for dissolution. The result of this attitude is of course, that honest and essentially moral persons who find their marriage incompatible are obligated to dissemble their mutual desire for divorce, and are driven into faked or real immorality in order to obtain it. The law, standing for public morals, has created a small body of women who for a consideration will spend a week-end with a man and let herself be cited as co-respondent~ so that his wife may be able to plead adultery on which the  law insists.

How then should thé law be changed? Should marriages be dissolved by declaration  before a Registrar as simply as they are contracted? There seems little doubt that this is the goal towards which public opinion is tending and to achieve it would mean the complete restatement of the meaning of marriage and of the interest of the state in it. Here we come to the most revolutionary aspect of the whole matter. For centuries it has been accepted that the only really valid cause for divorce is physical infidelity, a picture of marriage which to the modern bears a totally false emphasis. Is to misconduct himself with another woman the only, and the worst harm that a man can do his wife? Is it the only thing that renders a marriage not only unendurable to both parties, but a very mockery of the term?

Let us look at a few test cases, taken from life. Here is a girl from a sheltered home, very young, very ignorant, who marries, against her parents' warning, a young man who to them seems unstable. Within a few weeks she realises that he is a hypochondriac of the worst type, that, at times, he has fits of actual madness. On the excuse that only in her company is he well, he keeps her confined to the house, separates her from her family and friends and, when his fits of madness take him, bullies her till she is reduced to terror. Such love as she had killed by fear, physical contact becomes repugnerts and the thought of a child of the union to inherit the streak of insanity is a haunting nightmare. At last, int desperation, she runs home to her parents who taking legal advice, find that there no help for their child. A separation might perhaps be arranged, though with difficulty, since there has been no blow to class as cruelty but divorce? No. Though the only fit place for the man is an institution where he eat be properly treated, though he should never have been allowed to marry and is never likely to be a normal husband, yet this girl, still in her early twenties, is tied to him for the rest of her days. For, says the law, he was physically faithful to you, and what more do you want? 

Here is a woman whose husband drifts in and out of work, Losing job after job through drunkenness. At intervals during their married life he has presented her with children to the number of seven, but has made no attempt to support them. When bills become too pressing, he disappears for a time, leaving his wife to face his creditors, drifting back when he feels inclined. The law might perhaps grant a judicial separation, were his absences much prolonged, or were she to plead that she wished him back she could get some order for maintenance - for what it was worth! Were she truthful and owned that she never wished to see him again and asked for a divorce, the law would hold up hands of horror for, as the seven children witness, she has her “rights” and what more does she want? 

Then, as a contrast, let us consider the case of a typical middle aged couple. ‘They have been happily married for some twenty years, have brought up their children together, laughed and sorrowed together and, founded on experiences shared, have built up a partnership of understanding and content. Mr. Smith leads an exemplary life pays his way and is a good husband and father. The, suddenly, in his late forties, he gets that strange Indian summer which comes to many men. He feels the urge of youth again wants to recapture some of its glamour before it is too late. Mrs. Smith is a recaptures some of its glamour before it is too late. Mrs. Smith is settled and comfortable her years of passion past. One night, almost against his will; pushed by forces he dose not understand, he joins a gay party, he drinks more than usual and it goes to his head, there is a girl, a girl with a pretty face and no scruples. It is an episode at which he looks with horrified amazement the next day but if Mr.s, Smith were to find out, if she were stupid, intolerant enough to invoke the aid of the law, that one rash night might be weighed in the balance against twenty years of good comradeship and over balance it. Mr.s Smith is entitled to divorce her husband for has he not ruined the marriage by his act of physical infidelity? 

What then we ask should be the basis of divorce if not that of adultery only? The answer clearly is that where there is neither love nor comradeship in a marriages, neither justice nor morality is served by refusing to cancel it, and that where the union is States contracted, and there have been no children, the State has no right to deny to the parties concerned the rights of dissolution which it allows in all other contracts.

 ‘Where there is issue, the State has a right to investigate further, for it has a duty to its weaker citizens and is bound to protect the interest of the children. Even here though, opinion is rapidly changing. For yours it remained unchallenged that to “Keep the home together for the sake of the children” was above all things desirable. It is now being pointed out by psychologists that much as a child need a stable material background, even more does it need a stable emotional background. A home there there the quarrelling or bitterness may be worse for it than no home at all. Though the parents may pride themselves on concealing  their dislike of one another, though drunkenness or misconduct be ever so skilfully hidden, yet the child will be sensitive to the atmosphere of unrest and will be affected by it. Far better for it to be happy in a school or with a contented father or mother alone than to grow up harassed by the warring emotions of the adults around him.

 Children then are no stumbling block to divorce but the state must always have their well-being as the main consideration. 

 Having adjusted our minds to the new concept of marriage as a partnership entered into by contract and therefore dissoluble by mutual consent when the partnership has became intolerable, we must then consider very seriously what we can do with the present machinery for marriage and divorce, We shall find so much that is obsolete and cumbrous combined with so much that is slipshod and haphazard that we shall be well advised to follow the American rule “Never repair, scrap and replace”.  We must then try to devise a machine which shall meet today's needs.

Our first move must be to make marriage more difficult. If we want it to have a real significance and a reasonable hope of permanency, we must make it impossible for any two young people, unprepared and ignorant, to rush into it after a few weeks of acquaintance. On the assumption that prevention is better than cure, we must tighten the legislation at this end rather than at the other.

The adoption of the French rule that birth certificates must be produced for endorsement would, of itself considerably reduce the risk of bigamy, with untold advantage to all concerned. The production of a certificate of health would reveal hereditary disease or insanity and give the contracting parties an opportunity to reconsider. A probationary period of at least six months should be insisted on and might be ensured by a registration of betrothal to be followed by notice of marriage after the stated interval. The uses of this probationary period are incalculable. Not only does it give an opportunity to the young couple to test their compatibility, but it could be considered definitely as a period of preparation. Having borrowed ideas from France and Germany we night do worse than borrow one from Japan and establish a “school for brides.” It seems merely common sense that a Woman contracting with a man to make a home should know at least the elements of housekeeping, that the potential mother should have some knowledge of mothercraft. Yet there is no necessity for the woman to know either. As many a despairing general practitioner would testify, she ts allowed to bear healthy babies and to lot them die one by one through sheer ignorance of the elements of child welfare. Surely a Government which concerns itself so minutely with a man's drinking and smoking, which encompass his smallest action with regulations, might at least insist that some training be given to the mothers of its future Citizens.

Not only for the woman should there be a definite preparation for marriage. In the march of civilisation we have left behind the tribal “witch doctor" and "wise women” and have failed to provide substitutes. Our own young people can be utterly ignorant of the workings of their own bodies, so ignorant that even now (though not, fortunately, as frequently as in the last generation) a girl may come to her wedding night not knowing that physical union is part of the marriage contract, with the result that she receives a shock sufficient to throw her sexual life out of gear for years, if not for ever. In an intelligently run community this should, of course be impossible. No successful marriage can be built on an unsatisfactory sex relationship and it should be the duty of the state to ensure that clear teaching is given to the potential husband and wife as to each other's physical needs and the necessity for mutual adjustment. 

The, trained and ready, their six months' probation over, the young couple should be united by the simple civil ceremony. It would be open to them, as in France, to follow this by a religious ceremony according to their own belief, but this, as now, would not be obligatory. It would, on the contrary, be most desirable if the churches would confine this ceremony to those of their own faith and emphasis that those who choose it are also binding themselves to accept that church's views on divorce.

Having given every help in its power towards the making of a successful marriage, the State's responsibility is now ended. If after the lapse of a reasonable time - a year, at least should be compulsory - the couple come before a magistrate and honestly affirm that their marriage is a failure this, in itself, should be sufficient reason for the cancellation.

There need be no undue haste about the divorce. The couple might be interviewed by the Court‘s Matrimonial Adviser, whose duties would be somewhat similar to those of the present Court Missionary. They might be referred to a skilled psychologist so the the reason for their maladjustment might be discovered. But at no point should the question of the alleged “guilt” of either party be allowed to intrude. The magistrate's office is purely re-conciliatory and, failing to effect reconciliation, its sole remaining duty is to sign a license for divorce which would be operative in the same way as a marriage licence. That is to say, by presenting it to a registrar and giving due notices the couple would be entitled to go before him and make a public declaration in some such simple form of the following: 

“I call upon those persons here present to witness that I, A.B. do cancel my contract of matrimony ‘with thee, C.B." 

Wedding rings would then be returned and the couple would go out free, 

At this point some reefer will exclaim Bolshevik! A procedure borrowed direct from Soviet Russia! And why not? Each nation has something to learn from all the rest, and if by piecing together Ideas from France and Germany, from Japan and Russia, we can produce something workable, something free from hypocrisy and uncleanness, we shall have done something towards making England a land fit for heroes- to marry in.