LORD BROUGHAMsaid, be rose to call their Lordships' attention to a very important subject—namely, the working of the Court of Divorce and Matrimonial Causes, which had come into operation at the beginning of last year. They now had the experience of last year, and part of the present year, of the working of that Court, and it was highly expedient that their Lordships should direct their attention to the result. If an error in legislation has been committed either by going in a wrong direction, or by going too far, or by not going far enough, in any measure of law improvement, it became them to relax their speed, or to quicken it, or to alter their course, and seek to move in the right direction, and no shame should ever be felt to acknowledge an error. He rejoiced, however, to say that the result of the experience in that Court was not, that any error whatever had been committed in establishing the new jurisdiction, and all that was predicted by those who maintained the experiences, and even the necessity of that transfer of the power of divorce and of the power of judicial separation to a judicial tribunal had proved to be true, and the Court had been productive of great relief to many persons. He did not mean to say there were no defects in the working of the Court—quite the contrary—he was, indeed, about to call the attention of his noble and learned Friend on the woolsack, and of their Lordships, to certain defects which had an unfortunate tendency, though happily they might be easily remedied. The amount of business in the Court tended to show the necessity of an increase of the judicial force. The present arrear of business possibly might not be permanent —it might have arisen in a great degree from the non-existence until recently of a competent tribunal. Those who required the remedies which the Court now afforded had, before its establishment, no opportunities of obtaining them except by the cumbrous and ruinous treble process of a suit in the Ecclesiastical Courts, an action for damages at law, and afterwards a Bill passed through Parliament. In such circumstances many of these persons, who were entitled to the remedy, were utterly incapable of obtaining a divorce, and they all naturally availed themselves of 560 the establishment of the new Court. That of course had the effect of producing a large amount of business, at first, brought before it. But it was impossible to say whether this accumulation was the sole cause of the excess of business. The Returns showed that during the fifteen months ending March last the number of petitions presented to the Court for dissolution of marriage was 288, and for judicial separation 105; making in round numbers 400 cases. The result was that 43 cases of divorce were disposed of, in which 37 divorces were granted; and 51 cases of judicial separation were disposed of. It was said that in Scotland, where time out of mind a divorce by judicial proceedings existed, the greatest number of cases of this nature in any one year was 20; so that in proportion to the population of the two countries the number of divorces granted in England ought to be 120 instead of 37, in order to verify the adverse predictions made when the Court was established. Inasmuch, however, as owing to a want of judicial force a number of cases remained undetermined, it did not follow from the fact that 37 divorces were granted during the fifteen months ending March last that this was the number of divorces that would otherwise have been granted within that period. There were 288 petitions for dissolution of marriage on the list; of these only a small number had been disposed of, and there was an arrear waiting for trial of upwards of 100 cases. Their Lordships were aware that the Court was composed of the Lord Chancellor, the three Chiefs of the three Common Law Courts, the three senior puisne Judges of those Courts, and the Judge Ordinary of the Court, his excellent friend Sir Cresswell Cresswell. It had been found hardly possible for the Lord Chancellor or any of the Judges of the Common Law Courts to give their time and attention to the Divorce Court, and the consequence was that the Court had got greatly into arrear. No less than 35 petitions were presented to that Court during the last month, and it was therefore undeniable that a great increase in the judicial staff was desirable, either permanently or temporary. He, therefore, strongly recommended his noble and learned Friend on the woolsack to adopt some temporary remedy in order that the present arrear of business might be diminished. If it should be found that the arrear was not owing to accidental but to permanent causes, he hoped that no delay would take place in 561 increasing permanently the judicial force of the Court. There was another subject to which he wished to allude — not related to the mode in which the business of the Court was conducted, arising from the rules of practice which had been laid down with the view of saving expense to the suitors. The rules required great conciseness in the documents presented to the Court. The petition was reduced to the standard of a declaration in an action at law. He could compare it to nothing but the common counts in a declaration. The facts to be set forth were only the marriage of the parties, the date of the marriage, the act of adultery, or other acts upon which the dissolution of marriage was prayed, and the time when the knowledge of the adulterous intercourse was first obtained. To spare expense and to avoid prolixity, particulars which he thought ought to be stated in the petition were not required— he thought a far wider scope ought to be given to it. For example, the petition ought to state whether there had been a separation between the husband and wife, under what circumstances it took place, whether it had continued, whether there had been more than one separation, and what interval elapsed between the separation, and the acquaintance with the paramour commencing,—and many other particulars which it was needless for him to go over, but which would readily occur to any one familiar with the judicial proceedings in their Lordships' House, and in divorce Bills while the remedy was administered here. In those proceedings there was a full inquiry into all the circumstances; but the cases in the Divorce Court stood in this peculiar position that as 99 out of 100 of them were practically undefended, there was the greatest opportunity for collusion between the parties, and no facility of inquiry into the nature of that collusion. The husband desired a divorce against his wife, and the wife desired a divorce against her husband. Both parties equally wished for it. Then the paramour, who was co-respondent, wished it in many cases as much as the husband and the wife. Now, in such cases they might have the three parties interested all in league to deceive the Court, and therefore it was highly necessary to make such an arrangement in their rules of procedure as would tend to bring out all circumstances of suspicion. He felt that there ought to be in every case the presence of the Attorney General or some 562 one representing him on the part of the Crown and the public, and not only on the part of the public, but on that of the friends of the parties minded to prevent the divorce. Many cases had occurred within his recollection of intimation being given to their Lordships by the friends of parties, which prevented their passing a Bill of Divorce; but no such intimation could be given to the Court of Divorce under pain of imprisonment for contempt, He remembered a case which came before their Lordships, in which they were informed that the paramour was so far in league with the husband that he paid the expense of the application for divorce. They were apparently hostile parties; but their Lordships, having their suspicions awakened by information that reached them, elicited sufficient by the cross-examination of witnesses produced, and the examination of other witnesses, to satisfy themselves that there was no real opposition, and the application was refused. Such a course, however, could not be taken by the present Divorce Court, because no person could intimate his suspicions to the Judge without the chance of being committed. Yet it so happened that he himself knew that a similar case was pending in the Divorce Court, and that the same kind of intercourse was believed to exist between the paramour and husband. If the Attorney General appeared for the public the Court would become possessed of the knowledge of that fact, and might possibly have it proved in evidence. In the Judicial Committee of the Privy Council there had long been a rule that no petition should be entertained for the extension of a patent without the Attorney General or his representative, on the part of the public, being present. In most cases of extension of patents the whole of the facts were before the Court, and therefore the Attorney General was not so clearly necessary as in cases of divorce, in which facts might be concealed by the collusion of the parties. He was inclined to think that there ought to be a peremptory rule for the examination of the petitioner in every case. In the return of the cases up to March last he found that in no instance—neither in the thirty-seven cases in which divorce had been granted, nor in the six in which it had been refused —had the parties been examined. It ought to be the general rule to examine the petitioner, although there might be many cases in which the other parties ought not to be 563 examined. As an example of the advantage of having the petition extended, he might mention a case in which the Judge Ordinary objected that the petition was not according to the standard of conciseness, which the rules of the Court required, and it was, therefore, referred by the omission of a great mass of statement. But the Judge having read the petition and taken a note of the particulars, he afterwards committed these to the full Court and then called on the husband to be examined, and soon disposed of the application. There was another circumstance which required very great consideration— namely, the system of service, or means whereby notice of the proceedings of the Court was served. The first thing that should be attended to was that all parties concerned should be properly served with the petition. To this time no sufficiently stringent rule had been laid down, and consequently parties might be divorced without their knowing anything of the proceedings. No security was taken that there should be actual personal service. That, in his opinion, ought not to be the case, and the same certainty of personal service as now prevailed in those instances in which the non-obedience of the parties served rendered them liable to attachment, might, he thought, with advantage be required. The last circumstance to which he wished to call attention was this; he had been anxious to know whether there was any foundation for the rumour that the Court had disposed of twenty-seven causes in one day, and he was glad to find that it was a great exaggeration. Though it might be true that some proceedings in connection with twenty-seven cases had been disposed of in one day—the largest number of divorces actually decreed within that time was nine. Still it was a startling fact that the new Court should have granted in one day as many as, under the old system, had been granted by Parliament in three or four years. Indeed, he believed that for a period of three centuries only 365 divorces had been decreed altogether. But, notwithstanding the change which had since taken place, he felt assured that the greatest possible care and attention were bestowed by the learned Judges who presided in the Divorce Court in coming to a decision on the cases which were brought under their cognizance. The subject was one, however, the importance of which was of so transcendental a nature that it ought to be fenced 564 round with all the securities which the Legislature could provide. In the vast proportion of cases of judicial separation he found the wife took the initiative, while the husband was the prime mover in the great majority of cases of divorce; but whether in suits of the one description or the other, it was highly expedient that the question brought under the consideration of the Court should be thoroughly investigated. He could not close his observations without bearing testimony to the distinguished merits of the learned Judge, Sir Cresswell Cresswell, who presided in that Court, and who discharged the laborious duties which devolved upon him with the greatest efficiency. His learning, his acuteness, and his indefatigable industry were above all praise. The noble and learned Lord concluded by moving,
That the Account of the Number of Causes, Matters, and Things heard and disposed of in the Divorce Court, from 1st January to 1st June 1859, distinguishing the Number of Cases of Judicial Separation, of Dissolution of Marriage, and of all Matters relating thereto other than Sentences (laid before the House on Monday last) be printed.
§ THE LORD CHANCELLORsaid, his noble and learned Friend had done good service in bringing under the notice of the House the subject to which he had just called their Lordships' attention. Its importance could not be exaggerated, and he had for some time been so strongly impressed with that feeling that he had, previous to the dissolution of Parliament, deemed it to be his duty to ask his predecessor on the woolsack whether he was prepared to introduce a Bill to remedy the defects which existed in the working of the Divorce Court. He was informed in answer that such a Bill was in course of preparation; and as the duty of dealing with the subject had since devolved upon his own shoulders, he had directed to its consideration his most anxious attention. He concurred with his noble and learned Friend in the opinion that the present Court had upon the whole worked well, and was perfectly ready to bear his testimony also to the untiring energy and consummate ability which the Judge Ordinary (Sir Cresswell Cresswell) had brought to bear on the discharge of the duties of his office. There was, however, notwithstanding that energy and that ability, a want of judicial strength in the Court which rendered it incapable of getting rid with sufficient despatch of the business which came before it. The Legislature, he was nevertheless 565 of opinion, had acted with perfect propriety in not, in the first instance, establishing a set of Judges whose time should be exclusively devoted to the discharge of the business of that Court, inasmuch as it was impossible to predict what might be its amount. Parliament ought, he thought, to proceed tentatively and experimentally, even now, in dealing with the subject; for although there had been a great influx of business into the Court since its creation, still, as yet it was impossible to say what the steady course of its business might be. He should not, under those circumstances, advise their Lordships to appoint new and permanent Judges to preside over the Court, but should, as a temporary remedy for the defects to which he had referred, propose that all the fifteen Judges should be members of the Court, and should make arrangements whereby two of them might by turns sit with the Judge ordinary to constitute a full Court and dispose of the business which might be brought under their consideration. That course being-taken for the present, their Lordships would, he trusted, before long be in a position to ascertain what judicial strength was required for the fulfilment of these duties. He also concurred with his noble and learned Friend in thinking that there was not, under the existing state of the law, a sufficient safeguard against collusion, although he believed that not a single instance of such collusion had as yet occurred. He thought, however, it should be made more difficult than it was, and he concurred with his noble and learned Friend that some functionary should be employed who should investigate the circumstances of each case before it came on in Court; while it might also be not undesirable so far to change the rules of procedure as to require a more circumstantial statement from the petitioner of all the circumstances of his case, with a view to the investigation being conducted in a more satisfactory manner. That, he thought, might be done without levying any additional burden on the public revenue, because it was but fair that the expense of the proceedings should be cast on the petitioner in the first instance, to rest on him permanently in case of the failure of his suit; if he succeeded, on the adulterer, by whose misconduct the investigation had been rendered necessary. Beyond that there were some improvements which might be immediately adopted; and one of those was that the Court should be 566 authorized to sit in camera, as was the case in Scotland and France, and whenever the details of a case were of an objectionable character to exclude the public. So in all cases of domestic quarrels it would be advisable, with a view to future reconciliation, to hear the case in private, and not to allow all the details to get into the papers. There was another point of great importance. As the law now stood, nothing could be done with regard to the custody of the children except by the full Court, but it was desirable that the Judge Ordinary should have power to dispose of them. These and other points would be dealt with in the Bill, which he hoped in the course of a few days to lay upon the table.
LORD CRANWOUTHadmitted, that it was impossible to exaggerate the importance of this subject; but he must say that he regretted that the notice which his noble and learned friend had given was not one which was calculated to call attention to this subject. Looking to the terms of the notice (which was "to move that the Return No. 44 in the Minutes of 9th June, and delivered on the 27th June, be printed") he had not the remotest notion what it was about. He said this in justification of his being little prepared to give an opinion on the subject, which, however, was of the less importance that the subject would probably be fully discussed on Thursday next. In many of the observations of his noble and learned Friends he concurred. When the Bill constituting the Divorce Court was originally brought forward, he proposed that the Judges who should form the full Court should be the Judge Ordinary—sitting with either the Lord Chancellor or one of the Chief Justices, or the Chief Baron, of the Common Law courts — which Court alone should be competent to deal with cases of divorce "a vinculo matrimonii." That provision was so far modified as to include the senior puisne Judges of each Court. It was, however, found extremely inconvenient to secure the attendance of the Chief Justices or the senior puisne Judges, and he thought that his noble and learned Friend was quite right in proposing to empower all the puisne Judges to sit in the Divorce Court. Whether that provision would be sufficient he could not tell, for the whole process of dealing with this Court must be tentative—he thought that there was great reason for believing that it would suffice. He had had a conversation with 567 the Judge Ordinary on the subject, and had asked him to put his opinion in writing for the purpose of its being used by him on the coming on of the Motion on the subject of which notice had been given. In the opinion of the Judge Ordinary, if he could have the assistance of all the Judges for the purpóse of forming a full Court whenever it was required there would be no arrear of cases—for the cases, though important, rarely occupied much time. It was said that there was not sufficient provision against collusion, and he should be happy to assist in framing any means by which that could be prevented. He rejoiced to hear from his noble and learned Friend on the woolsack, that Sir Cresswell Cresswell had stated that not one case of collusion had occurred, and in the strict sense of the term it was not likely that there would be one ease a year; at the same time it was right that every precaution should be taken to prevent its occurrence. His noble and learned Friend seemed to think that some public officer ought to investigate the cases before they went into Court; but he thought it certainly doubtful whether such a plan would succeed; for, if they could not be thoroughly investigated in Court, how could they be better investigated by a public officer? Still, he was open to conviction. Having introduced the original Bill constituting the Court, and having been once or twice twitted with the number of cases of divorce which had arisen, he had answered that that was the greatest proof of the propriety of the measure; not one of the cases which had been brought before the Court, if they had been brought to their Lordships' bar, but would have passed, which was a proof of the efficacy of the measure in extending relief to the poor as well as the rich.
§ LORD REDESDALEsaid, he could not allow the conversation to terminate without addressing a few remarks to their Lordships. They would remember the strong opposition which he gave to this measure during its progress through Parliament; and he must say that every one of the fears he then entertained upon the subject had been realised by the consequences that had followed the passing of the Act. With regard to the statement that no divorce had been granted by the new Court which would not have been granted had the case come to their Lordships' bar, he begged to draw attention to one point which was referred to in the 568 Returns, namely, the immense number of applications for divorce by wives against their husbands. It was well known that it was rarely the practice of this House to grant a wife a divorce from her husband; but upon consulting the Returns he observed that in the course of the present year, forty-two divorces had been granted by the new Court on the application of husbands, and nineteen, or nearly one-half that number, on the application of wives, not one of which nineteen would have been granted had the applications been made at their Lordships' bar under the old system. Again, at the commencement of this year, 184 petitions had been presented by husbands, and 104 by wives; and under the former law he believed that in almost every one of those 104 cases divorce would have been refused. So far as the question of collusion was concerned, their Lordships would recollect that the most dangerous cases of collusion were those which came upon petition from the wife against the husband. When a man seeks a divorce, the proof of his wife's adultery destroys her character, and she forfeits her position in society. No woman would deliberately incur this disgrace for the purpose of being divorced, and thus in the case of the husband's suit there is seldom collusion between the parties in regard to the act on which the divorce is founded. But where the woman comes as the injured person, and obtains a divorce on showing that her husband has been guilty of adultery coupled with two years' desertion without reasonable cause, both of which facts he may admit without altogether forfeiting his position in Society, there is a great chance of collusion in cases when both are mutually tired of each other, and desirous of forming new engagements. These cases required the greatest possible watchfulness on the part of the Court; and the facts he had stated, proved, he feared, that great moral injury would probably be inflicted upon the community by the facility which had been given for applications of that sort. Motion agreed to.