ON THE STATE OF THE DIVORCE MARKET
| Author | C. P. Harvey |
| Date | 01 April 1953 |
| Published date | 01 April 1953 |
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02114.x |
THE
MODERN LAW REVIEW
Volume
16
April
1953
No.
2
ON
THE STATE
OF
THE DIVORCE MARKET
“
WILT thou have
this
Man to thy wedded husband, to live together
after God‘s ordinance in the holy estate
of
Matrimony? Wilt thou
obey him, and serve him, love, honour, and keep him in sickness and
in health; and, forsaking
all
other, keep thee only unto him,
so
long
as
ye both shall live?”
“
I,
John, take thee, Mary, to my wedded wife, to have and to
hold from this day forward, for better for worse, for richer for
poorer, in sickness and in health,
to
love and to cherish, till death
us
do
part,
according to God’s holy ordinance; and thereto
I
plight
thee my troth.”
“
I
will.”
These words have great beauty and, for many people, a deep
neligious significance.
For
the lawyer the important points are
their solemnity and their clarity. They are contractual in the
highest possible degree and their meaning is unmistakeable.
Nor
has
it
been mistaken. The legal concept of marriage is “the
voluntary union for life of one man and one woman to the exclusion
of
all others
”
(per
Lord Penzance in
Hyde
v.
Hyde
(1866)
L.R.
1
P.
&
Y.
lao,
183).
This definition has been constantly quoted and
reiterated.
It
is indeed the foundation of the jurisdiction of the
Divorce Court (see
Risk
v.
Risk
[1951]
P.
50).
Unhappily, how-
ever,
it
is now completely misleading. Both the nature of marriage
and its significance in law have entirely changed.
Under the Matrimonial Causes Act of
1937
a marriage cannot
normally be dissolved until it has lasted for three years. After that
it
can, and the dissolution rate runs at something like
30,000
per
annum. In other words, marriage has ceased to be anything like
a
lifelong union; it is simply a union for three years certain,
terminable thereafter at the option of the parties. This is a per-
fectly defensible arrangement if one feels that way about it. Indeed
it
is one which was advocated long ago by Jeremy Bentham, who
proposed
“
the rendering legitimate contracts for a limited time
”
in order
to
meet the requirements of “men who are unable to
undertake the charge
of
a wife
or
family
”
and who are accordingly
“
reduced to a forced celibacy
”
(Principles
of
Penal
IAJW,
Part
3,
Chap.
5).
The sort of men he had in mind were
sailors
and peuple
without fixed residence, and also “young
men
of
morc
elevcted
rank who expect a fortune
or
an establishment.” This
last
class
Vor.
16
129
9
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