THE

LAW MAGAZINE AND REVIEW.

A

No. CCCLVIII.-NOVEMBER, 1910.

I. THE PROBLEM OF MARRIAGE AND

DIVORCE.

DISTINGUISHED commission in England has the subject of divorce now under consideration: the late President of the United States was most active and aggressive in bringing before the people the necessity of legislation in which uniformity concerning divorce should be established learned and intelligent writers in all lands have expressed their views regarding the growing evils of divorce, while newspapers and magazines have teemed and bristled with statistics and denunciation; but no one has stopped to reflect whether after all the great social problem of divorce might not be easier solved if we first put the problem of marriage on a safer and sounder basis. The difficulty has lain in the fact that the question has been considered from a single point of view only-from divorce itself-instead of trying to solve the primary and equally important question on which all divorce must necessarily originate and from which it must necessarily spring—the marriage tie.

Divorce has no spontaneous origin for it cannot exist or be produced of itself: it is the result of some voluntary act, the offspring of some meeting and union of minds in a marriage contract, for there can be no divorce where there is no marriage any more than there can be a marriage

without a marriage contract. The agitation on the question of divorce has excluded from consideration those social and legal conditions that enter into the moulding of the bonds of wedlock, and whether there may not be some great radical error existing in the conception of the rules applying to the welding and uniting firmly together two human beings that may not be responsible to a large extent for the dissolution of a bond from which so many people seek to be free. Are we sure that our laws and the conditions and requirements of marriage are sound, and that if wiser and more liberal legislation on the subject of the marriage contract was obtained this might not in itself, at least to a large extent, do away with the necessity of so many who, once united in marriage, seek the divorce courts.

The truth is marriage is not properly protected by law; and with the retention of obsolete and antiquated ideas and rules of conduct, and the refined and academic trimming by judicial interpretation, the marriage contract has become today a judicial, social, and international paradox. What is marriage? If we turn to the Biblical and divine text we are surprised that nowhere is there any allusion to the conditions and requirements constituting marriage. There are many beautiful references to the unity of man and woman and as to what constitutes a good wife; but if we seek text-books and legal-writers it is found that those primitive conditions have now practically ceased to exist, for in these days of commercial rush and rivalry one can no longer sing with the Psalmist: "Thy wife shall be as a fruitful vine by "the side of thine house: thy children like olive branches round about thy table."

The consensus of judicial opinion to-day is that marriage is the fulfiment of a contract satisfied by the solemnisation of the marriage, but directly it exists creates by law a relation between the parties and what is called a status of each. The status of an individual, used as a legal term, means the legal

position of the individual in or with regard to the rest of the community. That relation between the parties, and that status of each of them with regard to the community, which are constituted upon marriage, are not imposed or defined by contract or agreement but by law. While the law defines the relations of man and woman with regard to marriage as a status, it is to be borne in mind that this status is only the result of a previous contract; in other words, that the contract produces the status but that the status does not produce the contract of marriage.

Whatever question or controversy may exist among legal writers and jurists concerning the nature of the relations subsisting between husband and wife after marriage, said Judge Bigelow of Massachusetts—whether the rights and liabilities of the parties are then to be regulated and governed by the principles applicable to civil contracts, or the contract is to be considered as merged in the higher nature of the status created by the agreement of the parties -all authorities concur in the conclusion that marriage has its origin and foundation in a purely civil contract. To put it more tersely, we might adopt the simile of Bishop, and say: "To constitute the status there must first be a con"tract; as to constitute a butterfly there must first be a "worm." (Sect. 19.)

Many authors and jurists err, as Bishop well remarks, in that they blend the contract by which marriage is entered into with the resulting status. The consequence of the contract-the subsequent status, condition or institution called marriage-does differ from any other status or institution of human or divine origin, but the contract-the negotiations that lead up to it-do not and should not differ in any essential particular from any other contract. It is not sufficient that marriage is recognised by law as based on a civil contract; in order to be valid and effective, 1 Niboyet v. Niboyet, 4 P. D. 1. 2 Little v. Little, 13 Gray, 264, 266.

the contract should be open to the same objections that challenge the validity of other compacts: and the same if not greater precaution should be scrupulously observed in all that tends toward the consent of the parties. If the law insisted on greater heed and watchfulness in the steps preliminary to the creation of the status of marriage-fuller and more candid treatment of all the elements of an upright and just bargain-then the contract of marriage when once agreed upon and arranged would be far less liable to attack, and the contracting parties unlikely to meet with those surprises and disappointments that to-day so often come with the waning of the Honey Moon (it might better be called the Money Moon), and which brings down the ruin of domestic congeniality if not divorce.

Definitions of the marriage status have come to us from the lips and pens of some of the most distinguished and eminent jurists, and in their exalted and beautiful description marriage would seem, as it ought to be, the paragon of human happiness freed from worldly and sordid motives; yet we know from a practical point of view that this is often not true. While the beautiful and ideal conception of marriage universally exists to-day as it has always existed, yet it too frequently deteriorates into a mere arrangementa bargain pure and simple-whereby two individuals cast up their joint stock-in-trade, whether it be money, beauty, intelligence, title, or political or social position, and enter into a matrimonial partnership. The union of a man and woman in disposition, temperament, passion, and affection suited to each other is the attainment of the highest earthly bliss; but we must recognise the fact that such unions are the exception, and that more frequently the marriage status is based on considerations of property, rank, reputation, and position. It is these elements entering into the consideration of marriage that lend to the marriage contract a more or less practical business aspect, and this fact is one of the

strongest reasons why the negotiations preceding marriage should be protected by every rule of conduct that in the ordinary experience of life is found to insure honesty.

It would appear to be treading on altogether false ground. to say, as some Courts have held, that "persons who marry agree to take each other as they are, and we cannot but

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say that nothing could be more dangerous than to allow "those who have agreed to take each other in terms for "better, for worse, to be permitted to say that one of the "parties is worse than expected. In short the one takes "the other for better or worse with all his or her past or "present imperfections and there is no going behind the

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ceremony." This is a good illustration of the popular but honestly misconceived opinion on this subject. The fallacy of such reasoning appears in the opinion itself, for if "persons who marry agree to take each other as they are," then they do not agree to take them as they are not, and if their condition of life, health, property, and other essential elements that contribute towards happiness are concealed, hidden, or suppressed, why should relief not be afforded against such fraud and deceit as well as in the case where one buys a sick or diseased animal believing it to be healthy and well? Undoubtedly on marriage one takes the other "with all his or her past or present imperfections," but this should not be true if those "imperfections" are sufficient to enter into the happiness of the parties and were unknown and concealed. With wise and proper legislation such every-day tricks, dishonesty and deliberate misrepresentation would not enter into the matrimonial relation any more than it is permitted to exist commercially, and under judicious penalising the marriage contract would soon become a more painstaking and serious business which, when once formed, would run far less risk of annulment than at present. Smarting under some perpetrated fraud

1 Long v. Long, 77 N. C. 308.