Whatever opinion may be entertained of the value of the Queen's Proctor's intervention, it is clear that it is desirable that the necessity for it should be obviated by the parties themselves disclosing all the material facts of the case. This would almost always be more effectual than the action of the Q.P., and it would, in a majority of cases, save the public the expense of this intervention.
At present it is to the advantage of a guilty wife to abstain from making a countercharge
which, if established, would deprive her husband of the right to have the marriage dissolved, because by Section 32 of 20 & 21 Vict. c. 85, the Court has the power, on making a decree absolute, to order the husband (though innocent), to pay a gross sum, or to make an annual allowance to his guilty wife; but it has no such power if, by reason of the husband's misconduct, his petition is dismissed.
If, then, power were conferred on the Court in all cases, whether the husband be successful in his suit or not, to order him to make some provision for his wife, there would not be the same inducement for her to conceal any matrimonial offence, of which her husband may have been guilty and thus the Q. P.'s intervention would usually be unnecessary.
This consideration alone will probably be thought to offer a sufficient reason for the proposed amendment of the law; but it seems, also, to be more consistent with justice, where both husband and wife have been guilty, that punishment should not fall on the latter only. In a majority of cases where both have committed matrimonial offences, the man has first set the bad example of his adultery, or has, by other misconduct, alienated his wife's affections, and thus contributed to his own dishonour. Yet, though this may be proved against a husband, and his suit may be dismissed on the ground of the most shameful misdeeds on his part conducing to his wife's adultery, he is able, as the law now is, to inflict the punishment of destitution on her for guilt of which he was the cause, and may take advantage of his own wrong by freeing himself from the liability to support her.
§ Thus, we have, my Lords, the President of the Court in direct conflict with the ex-President; but, my Lords, this is not all. The Bill was passed through the other House by Mr. Herschell, one of the most eminent Queen's Counsel at the Bar, and Sir Henry Holland; and it has also the approval of a great portion of the Bar. I am also authorized by Sir James Hannen to state that he finds that the Professional men in the habit of practising in his Court are decidedly in favour of the clause, and think its enactment would be expedient and advantageous. When the Bill was passing through the House of Commons the Attorney General stated, in reply to a Question, that the Government supported this clause. I trust, my Lords, that you will, therefore, refuse to agree to the Amendment, but will pass the clause in its entirety.
THE LORD CHANCELLOR
said, that at first sight the clause had appeared to him a reasonable one; but, on examination, he found that it was subversive of the principle on which the Divorce Court had hitherto proceeded. If the clause was allowed to stand part 190 of the Bill, in a case in which there was no divorce or no judicial separation—in which the Court pronounced no sentence either of divorce or separation—and in which the parties were to live together, or might live together if they pleased, the Court was to be at liberty to order the husband to make provision for the wife, either by gross sum or annual allowance. He thought their Lordships should not agree to the clause, and hoped the noble Lord would not press it.
§ LORD BLACKBURN
pointed out, that a wife who committed adultery might be left to starve by a husband who himself was guilty of adultery, and who might even have driven his wife to guilt, and therefore failed to obtain a divorce; whilst a husband who, on the evidence, did not appear to be blameable, and therefore obtained a divorce from a wife who appeared to be without excuse, was obliged to support her. This was a principal cause of collusion. He thought this should not be permitted to continue. He trusted their Lordships would be influenced by the opinion of the President of the Divorce Court, and would allow the power proposed by the clause to be given to the Court.
§ LORD SELBORNE
said, that if the general law of the land, which deprived a guilty wife of her claim to maintenance by her husband was wrong, it ought to be amended by a legislative enactment; but the right of an adulterous wife to a maintenance from her husband ought not to depend on the circumstance that a suit had been instituted against her. It seemed to him that the effect of this clause would be to introduce two extraordinary anomalies. In the first place, it would give an exceptional advantage to a woman who was unsuccessful in her suit; and next, it would enable the Judge to do something incidentally in favour of the one party and against the other, when, upon the case which alone brought the parties within his jurisdiction, he could make no decree. He thought the clause should not be allowed to stand part of the Bill.
§ Amendment agreed to.
§ Clause negatived.
§ Clause 4 (Power given by 22 and 23 Vict. c. 61, s. 5, extended to cases where no children of marriage) agreed to.191
§ LORD PENZANCE
moved, to insert after Clause 4. the following clause:—If a husband shall be convicted summarily or otherwise of an aggravated assault within the meaning of the statute twenty-fourth and twenty-fifth Victoria, chapter one hundred, section forty-three, upon his wife, the court or magistrate before whom he shall be so convicted may, if satisfied that the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with her husband; and such order shall have the force and effect in all respects of a decree of judicial separation on the ground of cruelty; and such order may further provide,1. That the husband shall pay to the board of guardians for the parish or union in which he shall reside at the time of the said conviction, such weekly sum as the court or magistrate may consider to be in accordance with his means, and with any means which the wife may have, for the support of his wife; and the board of guardians shall from time to time pay the money so received by them to the wife, and they shall have the like remedies against the husband for the recovery of such weekly sums, or any part thereof, as they would have against him if he had deserted his wife, and she had become chargeable on the parish or union, for any sums spent by them in maintaining her; and the court or magistrate by whom any such order for payment of money shall be made, shall have power from time to time to vary the same on the application of either the husband or the wife, upon proof that the means of the husband or wife have been altered in amount since the original order or any subsequent order varying it shall have been made.2. That the legal custody of any children of the marriage under the age of ten years shall be given to the wife.Provided always, that no order for payment of money by the husband, or for the custody of children by the wife, shall be made in favour of a wife who shall be proved to have committed adultery; and provided also, that all orders made under this section shall be subject to appeal to the High Court of Justice.The noble and learned Lord said, he would not refer to the sensational cases of cruelty which were of almost daily occurrence in order to show the necessity of the case—were he disposed to do so, he could produce a long list of them—some of them of a very black character. He thought the knowledge that the wife had an immediate and cheap remedy in case of cruelty would have a very deterrent effect upon brutal husbands.
THE EARL OF KIMBERLEY
said, he was not sure that the machinery of the portion of the clause referring to the recovery of money by the Boards of Guardians was quite satisfactory. He doubted whether Guardians were the best bodies 192 to receive and pay over the moneys payable under the order of the magistrate.
§ Amendment made; Clause agreed to, and added to the Bill.
§ The Report of the Amendments to be received on Tuesday next; and Bill to be printed as amended. (No. 55.)