DIVORCE LAW REFORM?

Publication Date01 Nov 1956
AuthorO. Kahn‐Freund
DOIhttp://doi.org/10.1111/j.1468-2230.1956.tb00379.x
THE
MODERN
LAW
REVIEW
-~
Volume
19 November 1956
No.
6
DIVORCE
LAW
REFORM?
"Every public action which
is
not customnry, either
is
wrong,
or,
if
it
is
right,
is
n
dangerous precedent. It
follows
that
nomng
should ever be done
for
the
first
time."
Cornford,
Microcomographia Academica.
THE Report of the Royal Commission
on
Marriage and Divorce'
which was published in March
1956
covers a considerable variety
of
topics and deals extensively with a large number of technical
problems in the laws of England and of Scotland.
An
immense
amount of painstaking lobour has gone into the analysis
of
the
existing law, into
a
minute discussion of the evidence submitted
to the Commission, and into the attempt
fo
justify the recommen-
dations, both negative and affirmative, at which the Commission
arrived. Lawyers, both
on
the practising and
on
the teaching
side of the profession, will have to spend many hours perusing
and digesting the Report, but will feel rewarded by
so
convenient
a
presentation
of
so
much useful material. Yet, many readers
of
this Report will deplore that
so
little has been done to
elucidate the relevant social facts, that
so
little account has been
taken of modem psychological and sociological thought, and that
a
precious opportunity has been missed
of
clarifying the policies
which underlie the existing law and which should govern its reform.
The Report will hardly be held up to future generations as
an
example of those great epoch-making State Papers which, through
the boldness of their approach and the width
of
their perspective,
proved to be formative elements in social and in legal history.
The Royal Commission was appointed
''
to inquire into the law of England and the law of Scotland
concerning divorce and other matrimonial causes and into the
powers
of
courts of inferior jurisdiction in matters affecting
relations between husband and wife, and to consider whether
1
Cmd. 9678, ix and
405
pp.
H.M.S.0.
116.
6d.-For an excellent critical din-
cunsion
of
the hietorical backrnd see
0.
R.
McQregor,
Ths
Morton
Commisshn:
A,
Social
and
istorical
Commentary,
British
Journal
of
Ehiology, Vol.
VII
(1956),
p.
171.
678
574
THE
MODEaN
LAW B&VIEW
VOL.
10
my changes should be made in the law or its administration,
including the law relating to the property rights of husband
and wife, both during marriage and after its termination
(except by death), ,having in mind the need to promote and
maintain healthy and happy married life and to safeguard
the interests and well-being of children; and to consider
whether any alteration should be made in the law prohibiting
marriage with certain relations by kindred or affinity.”
It
will
be seen that the Terms of Reference enabled the Commission
to cast its net wide.¶ Thus the Report covers not only the Grounds
of
Divorce,s but also-to some extent-those of Nullity,’ quite
apart from the special problem of prohibited degrees expressly
mentioned in the
Terms
of Reference, and
‘(
Other Remedies
in the High Court,
e.g.,
Separation. The Commission proposed
improved methods of Marriage Guidance and of Conciliation and
made specific and important recommendations to give greater
significance to Child Welfare in matrimonial proceedings and with
regard to Custody in general.8
It
devoted much attention
to
Matrimonial Maintenance and Maintenance for Children,O including
the Enforcement of Maintenance Orders, both in the High Court
lo
and in Magistrates’ Courts,ii and the validity and effect of Separa-
tion and Maintenance Agreements.i2
It
reexamined the problems
of Matrimonial Property,i3 gave some thought
to
the structure
of
the court dealing with Matrimonial Causes
and a detailed analysis
to Matrimonial Jurisdiction in the international sense and the
Recognition of Foreign
jurisdiction^.^^
In accordance with the
Terms
of
Reference
it
went into the substantive and procedural
law applied in Matrimonial Proceedings in Magistrates’ Courts,i6
and
it
also covered more technical matters such
as
Damages and
Costs” and Procedure in the High Court and Court of Session.i8
Some very important topics appear at the end as
Miscellaneous
Matters.”
a
In some respects wider than it actually did,
e.g.,
with respect
to
grounds
of
nullity in
Part
11,
and (ver much
more
importautly) the Guardianship
of
Infants Acts in Parts V, V!I and XIV. See
No.
364.
It is not easy
to
seo
why
these rtatutes were regarded
as
being outside the Terms of Reference:
thoir custody and maintonanco provisions are most closely connected with
matrimonial proceedings in fact.
Part
I.
4
Part
II.
5
Part XV.
6
Part
III.
7
Part IV.
8
Part
v.
0
Part VII.
10
Part VIII.
11
Part XIV.
if
Part
x.
1s
Part
IX.
1‘
Part XI.
15
Part
XII.
$6
Part
XN.
17
Part VI.
10
Part XVI:
e.g.,
the regrettable rejection of the proposal that
plii
odulterini
should be legitimated by the marria
e
of their natural parents (seven members
were however in favour of giving ubt,,to the proposal;
see,Nos.
1182
et seq.);
tho recommendation
to
introduce the into En lish law
so
as
to
make legitimate the children
horn
of
void marriages provide! at least
one parent was ignorant
of
tho impediment
(No.
1186);
the recommendation
that
a
bequost
to
or
appointment in favour
of
a
spouse
should be invalidated
on
divorce
or
ynulment
(No.
1189);
and the recommendation that, in an
“Enoch
Arden situation, tho fact that the
spouse
presumed dead
is
alive
Part
xm.
putative marriage

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