Book Review: The Concept of Matrimonial Cruelty
| Author | John V. Barry |
| DOI | 10.1177/0067205X6400100112 |
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| Subject Matter | Book Reviews |
BOOK REVIEWS
The Concept
of
Matrimonial Cruelty, by
JOHN
M.
BIGGS,
LL.B.,
PH.D.
(Lond.),
S.J.D.
(Harvard), (The Athlone Press, University
of
London,
1962),
pp. i-xx,
1-228.
Australian price
£2
17s.
9d.
This is an excellent work;
if
there were more legal texts
of
similar
quality, keeping abreast
of
legal publications would be apleasanter task.
The author was asenior lecturer in law
at
the Australian National Univer-
sity, to which he came from the U.S.A., and this essay presumably is the
thesis he submitted for his S.J.D. from Harvard. He wears his genuine
learning gracefully; he writes with distinction; his material is admirably
presented; and his analyses acute. He
is
sensibly aware
of
the realities
behind the judicial process and its response, usually tardy, to irresistible
social pressures, and this awareness illumines each chapter
of
his per-
ceptive essay.
So long as women were subject creatures and marriage was regarded
for all practical purposes as indissoluble, matrimonial law was relatively
simple. When the proposition that marriage
is
the union
of
aman and
awoman to the exclusion
of
all others, voluntarily entered into for
life1became subject to the qualification that the union was
not
necessarily
for life but could be dissolved in the civil courts upon grounds provided
by statute, the courts had to work out doctrines that embodied changed
social concepts deriving from new social pressures. The successive
generations
of
judges performing this task have been the products
of
their times, with the limitations and preconceptions
of
their upbringing,
of
their training, legal and otherwise,
of
their social class and religious
adherences, and
of
their own temperaments. They were males, and
usually husbands.
In
asociety tending to lay more and more stress
on
personal happiness, their approach to the problems
of
reconciling what
seemed to be just individual claims to relief with assumptions regarded
as necessary for social stability has reflected those preconceptions and
limitations.
In
the grant
of
decrees
of
dissolution, in financial provisions
ordered for wives, and in decisions relating to the custody
of
children, a
masculine outlook has been dominant, even where the wife was the
injured party, and particularly so where, for the purposes
of
the record,
she was not. Indeed, some
of
the decisions can be explained only on the
basis that errant wives deserve to be punished, or
at
all events, may
rightly be made to suffer through their maternal affections for their
lapses. The double standard favouring the male that is discernible
in
the original statutes and in the cases significantly affected the develop-
ment
of
the law relating to cruelty in matrimonial causes.
In
the canon
law
at
first only adefence to aclaim for restitution
of
conjugal rights,
and later aground for adivorce from bed and board, cruelty found its
way in various phrasings as abasis for relief into enactments which
1Cf. Marriage
Act
1961
(Cth), s. 46,
and
Hyde
v.
Hyde (1866)
L.R.
1P. &
D.
130, 133.
159
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