Page:EB1911 - Volume 08.djvu/355

 ecclesiastical courts also considered themselves bound to refuse relief if there was shown to be collusion between the parties. In its primary and most general sense collusion was understood to be an agreement between the parties for the purpose of deceiving the court by false or fictitious evidence; for example, an agreement to commit, or appear to commit, an act of adultery. Collusion, however, is not limited to the imposing of other than genuine evidence on the court. It extends to an agreement to withhold any material evidence; and indeed is carried further, and held to extend to any agreement which may have the effect of concealing the real and complete truth from the court (see Churchward v. Churchward, 1894, p. 161). This doctrine was of considerable importance even in the days when only divorces a mensa et thoro were granted, because at that time the parties were not permitted to separate by consent. At the present day it has become, with regard to divorce a vinculo matrimonii, a rule of greater and of more far-reaching importance.

The canon law as accepted in England, while allowing divorces of the nature and for the causes above mentioned, actively interfered to prevent separation between husband and wife in any other manner. A suit known as a suit for restitution of conjugal rights could be brought to compel cohabitation; and on evidence of the desertion of either spouse, the court ordered a return to the matrimonial home, though it carried no further its authority as to the matrimonial relations within the home. To this suit an agreement between the parties constituted no answer. But an answer was afforded by any conduct which would have supported a decree of divorce a mensa et thoro. It is a question whether, indeed, the ecclesiastical courts would not have gone further, and refused a decree of restitution of conjugal rights on grounds which might appear adequate to justify such refusal, though not sufficient on which to ground a decree of divorce. The view of the court of appeal and the House of Lords has given some colour to this opinion, and certainly the court of appeal has held, although perhaps somewhat hastily, that the effect of a modern statute has been to allow the court to refuse restitution of conjugal rights for causes falling short of what would constitute ground for divorce (Russell v. Russell, 1895, p. 315).

The ecclesiastical courts provided for the pecuniary rights of the wife by granting to her alimony during the progress of the suit, and a proper allowance after its termination in cases in which she was successful. Such payments were dependent on the pecuniary means, or faculties, as they were termed, of the husband, and were subject to subsequent increase or diminution in proper cases. But the ecclesiastical courts did not deal with the custody of the children of the marriage, it being probably considered that that matter could be determined by the common law rights of the father, or by the intervention of the court of chancery.

The canon law fixed no period of limitation, either in respect of a suit for divorce or for restitution of conjugal rights; but, as regards at least suits for divorce, any substantial delay might lead to the imputation of acquiescence or even condonation. To that extent, at least, the maxim vigilantibus non dormientibus jura subveniunt applied.

It is remarkable that desertion by either party to a marriage, except as giving rise to a suit for restitution, was not treated as an offence by canon law in England. It formed no ground for a suit for divorce, and constituted no answer to such a suit by way of recrimination. It might indeed deprive a husband of his remedy if it amounted to connivance, or perhaps even if it amounted only to culpable neglect.

The canon law, as administered in England, has kept clear the logical distinction which exists between dissolving a marriage and declaring it null and void. The result has been that, in England at least, the two proceedings have never been allowed to pass into one another, and a complete divorce has not been granted on pretence of a cause really one for declaring the marriage void ab initio. But for certain causes the courts were prepared to declare a marriage null and void on the suit of either party. There is, indeed, a distinction to be drawn between a marriage void or only voidable, though in both cases it became the subject of a similar declaration. It was void in the cases of incapacity of the parties to contract it, arising from want of proper age, or consanguinity, or from a previous marriage, or from absence of consent, a state of things which would arise if the marriage were compelled by force or induced by fraud as to the nature of the contract entered into or the personality of the parties. It is to be remarked that, in England at least, the idea of fraud as connected with the solemnization of marriage has been kept within these narrow limits. Fraud of a different kind, such as deception as to the property or position of the husband or wife, or antecedent impurity of the wife, even if resulting in a concealed pregnancy, has not in England (though the last-mentioned cause has in other countries) been held a ground for the vitiation of a marriage contract. A marriage was voidable, and could be declared void, on the ground of physical incapacity of either spouse, the absence of intercourse between the parties after a sufficient period of opportunity being almost, if not quite, conclusive on this subject.

With regard to one cause of nullity the legislation interfered from consideration, it is said, of a case of special hardship. Before the Marriage Act of 1835 marriages within the prohibited degrees of consanguinity and affinity were only voidable by a decree of the court, and remained valid unless challenged during the lifetime of both the parties. But this act, while providing that no previous marriage between persons within the prohibited degrees should be annulled by a decree of the ecclesiastical court pronounced in a suit depending at the time of the passing of the act, went on to render all such marriages thereafter contracted in England “absolutely null and void to all intents and purposes whatever.”

Another suit was allowed by the ecclesiastical courts which should be mentioned, although its bearing on divorce is indirect. This was the suit for jactitation of marriage, which in the case of any person falsely asserting his or her marriage to another, allowed such person to be put to perpetual silence by an order of the court. This suit, which has been of rare occurrence (though there was an instance, Thompson v. Rourke, in 1892), does not appear to have been used for the purpose of determining the validity of a marriage. The legislature, has, however, in the Legitimacy Declaration Act of 1858, provided a ready means by which the validity of marriages and the legitimacy of children can be determined, and the procedure provided has repeatedly been utilised.

It should be added, as a matter closely akin to the proceedings in the ecclesiastical courts, that the common law took cognizance of one phase of matrimonial relations by allowing an action by the husband against a paramour, known as an action for criminal conversation. In such an action a husband could recover damages estimated according to the loss he was supposed to have sustained by the seduction and loss of his wife, the punishment of the seducer not being altogether excluded from consideration. Although this action was not unfrequently (and indeed, for the purposes of a divorce, necessarily) brought, it was one which naturally was regarded with disfavour.

Effect of the Reformation.—Great as was the indirect effect of the Reformation upon the law of divorce in England, the direct effect was small. It might, indeed, have been supposed that the disappearance of the sacramental idea of marriage entertained by the Roman Church would have ushered in the greater freedom of divorce which had been associated with marriage regarded as a civil contract. And to some extent this was the case. It was for some time supposed that the sentences of divorce pronounced by the ecclesiastical courts acquired the effect of allowing remarriage, and such divorces were in some cases granted. In Lord Northampton’s case in the reign of Edward VI. the delegates pronounced in favour of a second marriage after a divorce a mensa et thoro. It was, however, finally decided in Foljambe’s case, in the 44th year of Elizabeth, that a marriage validly contracted could not be dissolved for any cause. But the growing sense of the right to a complete divorce for adequate cause, when no longer any religious law to the contrary could be validly asserted, in time compelled the discovery of a remedy. The commission appointed by Henry VIII. and Edward VI. to reform the ecclesiastical law drew up the elaborate report known