ARE WE HONEST ABOUT DIVORCE?
DORA M. SANDERS
ARE we in Canada being honest about divorce? As a people, we have always flattered ourselves that in divorce matters we are not as other nations are—that our divorce rate is very low; that such few divorce proceedings as eventuate are always conducted with due decorum and due regard to the intent of our relatively stringent divorce laws.
Have we been kidding ourselves?
Recent developments have served forcibly to remind us that our apparent divorce rate is not our real divorce rate at all. Many more Canadians are being divorced in the United States than in Canada. Many such Canadians are securing divorces on grounds not recognized in Canada, and are then returning to the Dominion and demanding the right to remarry. So many, in fact, that the validity of United States divorce decrees in Canada has become a problem of major embarrassment to our legal authorities.
Under what circumstances, for instance, should persons granted decrees based on grounds not legal in Canada be allowed to remarry in Canada? Many are being so allowed. Does that mean that we. through our officials delegated to handle such matters, are conniving in a general evasion of our own divorce laws?
If it does, then there would seem to be small justification for our self-righteous attitude on divorce in general.
Moreover, evidence is growing that divorce by collusion is becoming increasingly common in Canada itself. Certain well-known lawyers, in fact, frankly admit that grounds for divorce are frequently “arranged” by common consent of the parties involved. “If we are to have only one ground for divorce,” says one legal luminary, “by all means let it remain as it is—it is so easy to arrange.”
When two persons obtain a divorce in the United States a record of the country in which the marriage was performed is not now kept, but in 1922, the last year in which such information was collected, 1,368 Canadian marriages were dissolved in the United States courts as compared with only 544 in Canada.
That is. two and a half times as many people that year went from Canada to the United States for their divorces as obtained them from the courts and divorce committees at home. There is no reason to suppose that the rate is any smaller now. It probably is greater.
Do T ou Know :
That more (Canadians are being dr vorced in the United States than in Qanada ?
That persons divorced elsewhere on grounds not recognized by Qarr adían law are allowed to remarry in Qanada ?
That divorce “by arrangement” is possible in Qanadian courts ?
The apparent divorce rate in Canada is very low compared with that of her neighbor an average of two for every 100 marriages contracted in 1930, as against seventeen divorces for every 100 marriages in the same year in the United States. Commenting on this, the Divorce Report from Ottawa quotes the Marriage and Divorce Bulletin of the United States Bureau of Census:
“There is no doubt that many Canadians are acquiring a residence in the United States for the sole purpose of obtaining a divorce, because, in general, divorce laws are more liberal in the United States than in Canada.”
The Law of Domicile
WHAT is the legal status of these divorcees when, if ever, they return home?
The Canadian law, in general, recognizes as valid any decree granted by courts of the domicile of the married pair. Domicile is the country which is considered by law to be a person’s j>ermanent home. It has been defined as Habitation in a place with the intention of remaining there forever. unless some circumstance should occur to alter that intention.”
Any divorce secured through a temporary residence set up solely for the purpose of divorce, is not recognized by the Canadian courts. Such residence does not establish domicile.
Should, however, a couple married in Canada move to the United States with “the intention of remaining there forever” and obtain a divorce in the United States courts, that divorce would be held valid in Canada, even though it might be granted for such grounds as cruelty or desertion, which are not in themselves grounds for divorce in Canada.
This law of domicile is the stumbling block in the path of many divorcees seeking to remarry in Canada, according to one registrar of marriage licenses.
“What evidence can be brought to prove an intention?” he asked. “It is not necessary for a man to take out naturali-
zation papers in order to establish a domicile. He may live in a foreign country all his life but still retain his British citizenship. Yet that foreign country would IK* his domicile. How can anyone know whether or not a man actually intends to remain all his life in a new country unless circumstances (K*cur to alter that intention?"
It is not even necessary, this registrar declared, for a man to have taken his wife and family with him in order to establish domicile. A woman’s domicile is always that of her husband. If he is domiciled in California, that. too. is her domicile, even though she has never set f(K>t outside the Canadian town in which she was born.
This raises additional difficulties when it is the woman who is seeking divorce, for she can only bring action in the courts of her domicile. Not only must she seek divorce in the foreign court, but. on returning to Canada, she must prove her husband's intention of remaining in his foreign residence permanently, thus giving her the right to her decree.
A famous illustration of the law of domicile as it applies to women is the case of an Englishwoman who married a Greek. After some years of married life, the husband returned to Greece and there obtained an annulment of the marriage on the grounds that no Greek priest had been present at the ceremony. 'Phis objection, of course, could not be allowed by the British courts and, while living in the British Empire, the woman was still legally married. Since, however, the man was then domiciled in Greece, she had no power to divorce him in the courts of her own country; while, if she went to Greece, she could obtain no decree, since there it was already established that she had never been married at all !
Side by side with her pathetic plight is that of the Canadian whose wife ran away to Florida a few months ago. divorced him. and married again. Since her first husband was all the time domiciled in Canada, in the eyes of the Canadian courts she has no right to her decree and he is still married to her. I f he ever wants to marry again, he must in turn divorce her, although under the laws of another country she is no longer his wife and is already living with another husband.
Even more recently comes the story of a Canadian Olympic star, at present resident in California, spending six weeks at Reno in order to obtain a divorce from her Toronto husband. Although not yet divorced, she is already engaged to marry again. If she does so and returns to Canada, what will her status be?
While all these perplexities are piling up for Canadians divorced abroad, we have a growing army of patriots who apply for divorce at home.
Their course is really simpler. Under present legislation a divorce hearing in most of the provinces takes little longer than it does at Reno. The Literary Digest quotes the time for the Reno “lightning decrees” as averaging thirty-five minutes. In Canada the average time is about forty, and it is possible to obtain a decree in fifteen. This, of course,
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applies to uncontested suits; and nearly, all our suits are uncontested.
Six months, or three months at the discretion of the court, after the first or decree nisi has been granted, the court will, on application, make the decree absolute, and then both parties are free to marry again. This is a shorter time than exists in many of the States, where the time required to elapse between the first and final decrees is often as much as a year. Total costs for both court proceedings, apart from lawyers’ fees which are variable, amount to about $20.
In point of technicalities, divorce in Canada is not hard to obtain. Once evidence has accrued sufficient to establish grounds, the rest is easy. That is, once anybody has proved his or her right to a divorce there is no trouble about getting it.
Of what do these rights consist?
The Growth of Divorce Laws
IN ORDER to understand the divorce law as it exists in Canada, one must go back to the days of King Henry the Eighth when marriage was generally arranged for State or economic purposes, and mistresses were plentiful.
Divorce, as it came into being at that time, was divorce a mensa et thoro—? legal separation “from bed and board” which did not allow remarriage. Later, about 1600, Parliament ordained that anyone wishing to take out a divorce a mensa et thoro h d first to give a bond that he or she did net ntend
to marry again during the life of hi A her spouse. I
This lasted for sixty years. T'v Hain Lord Roos, of whom history pittle
except this one fact, set a ne pent.
Divorced from his wife a mens o, he
found himself wanting to marr> ., and accordingly applied to Parliam .or the
dissolution of his bond, whi he had assumed, he claimed, under ~ impulsion. Parliament finally complied with an act entitled “An Act for Lord Ro»»s to marry again,” and for the first time ii. England a man was legally remarried while his first wife still lived.
This became the regular procedure during the next two hundred years; first, divorce a mensa et thoro under bond, then the dissolution of the bond by private Act of Parliament.
The situation was summed up by an English justice early in the nineteenth century, when he sentenced a laborer found guilty of bigamy. The prisoner’s wife had robbed him and run off with another man, and under these circumstances the laborer had married again.
“You should,” said the justice, as quoted by the late Chief Justice Mathers of Manitoba, “have brought an action and obtained damages, which the other side would probably have been unable to pay; in which case you would have had to pay your own costs, perhaps £100 or £150. You should then have gone to the Ecclesiastical courts and obtained a decree a mensa et thoro, and then to the House of Lords, where, having proved : that these preliminaries had been complied ! with, you might have been freed from your bond and entitled to marry again. The expense might have amounted to £500 or even £1,000. You say you are a poor man. But I must tell you that there is not one law for the rich and another for the poor.”
To correct these conditions, in 1857 the first British Divorce Act was passed, creating a new court called the Court of Divorce and Matrimonial Causes, vested with pow-er to grant divorce a vinculo matrimonii, that is, from the bond of ma'rimony. Grounds for divorce were adultery only, in the suit of a man against his wife; and. in the suit of a woman against her husband, adultery coupled with desertion, bigamy, or “legal cruelty”—a naive reflection of the much discussed “double standard of morals.” This
divorce a vinculo matrimonii is the common meaning of the term divorce today.
Before Confederation, Nova Scotia, New' Brunswick and Prince Edward Island adopted divorce acts ot their owm, similar to the British act, with a slightly wider scope in grounds. Prince Edward Isj^fcd has never gone farther than adopting the act, and has as yet created no courts empowered to grant divorce. Petitions arising in that province are still made through the Senate.
British Columbia, Alberta, Saskatchewan and Manitoba, before entering Confederation, had all adopted the English code of civil and criminal laws, which, of course, included the British Divorce Act of 1857, with its amendments up to the time of its adoption by the provinces. The West, therefore, has been for many years entitled to provincial courts of divorce and matrimonial causes, although not until 1917 w'ere any such courts formed.
The B. N. A. Act did not in itself absorb the Divorce Act of 1857, and Upper and Lower Canada continued to legislate divorce much as it w'as legislated in England before that year. In 1930, however, this condition w'as remedied in Ontario, and the pow'ers of the courts of divorce and matrimonial causes were vested in the supreme courts of the province.
By the Dominion Act of 1925, grounds for divorce were simplified to adultery only in the suit of either the husband or the wife; and so the divorce law' stands in the provinces today.
Evidence of Collusion
TO THE casual observer, the question of the domestic divorce in Canada seems to be fairly settled, but according to leading members of our legal profession, administration is not as simple as it seems. In the first place, the “grounds” seldom reflect the real reason for wanting a divorce.
“Let’s look at facts,” said Gordon Waldron, K.C. "What are the reasons for modern marriages going on the rocks? Scarcely five per cent of our divorce cases are actually brought through moral indignation at an erring spouse. Men and women forgive each other time and time again, until some situation arises that makes divorce seem profitable. A new or old love appears—perhaps a gold digger thinking of alimony—-but there is only one ground for divorce, and so adultery is made the excuse. Yet in other cases where divorce, if there is to be any divorce, would be most desirable, it is not possible.”
Several prominent legal men, while refusing to admit outright that decrees are obtained on false evidence, all agree that the present system is a temptation to unscrupulous people.
“Frankly,” said J. M. Godfrey, K.C., “many of the people who appear in our divorce courts are not the kind of persons to whom adultery is really shocking. The very sensitiveness of those people makes the shame of a public divorce court impossible. But to unprincipled men and women our present system offers a most convenient way out of an inconvenient bargain. What we have to do,” he continued, “is to decide whether or not we believe in divorce, and if we do, why.”
"If w'e are to have only one ground for divorce,” said a third divorce counsel, “by all means let it remain as it is. It is so easy to arrange.”
He went on to explain that in a divorce suit, no man or woman can be compelled to give evidence that might establish his or her own guilt. It is the privilege of any witness to refuse to answer any question based on the relationship between him or herself and the respondent. The case must be able to rest on the evidence supplied by a disinterested third person, and this puts the administrator of justice, be it judge or jury, in the position of having to décide just how' much evidence is necessary to establish guilt.
He told of a recent suit brought by a prominent Canadian merchant who, having been separated for some time from his wife, wanted to marry again. He wrote his wife asking for a divorce and suggesting that she might as well have a detective look into the matter of evidence. This she obligingly did.
In court, the detective was able to swear that he had seen the respondent and a woman not his wife enter a private compartment of a train, and that, so far as he knew, neither had left it until they arrived at their destination. There they had gone to a hotel and registered as man and wife.
On that evidence the court was satisfied; the injured wife was given her freedom, the merchant promptly married again, and even those of his friends who knew him to be divorced never for an instant entertained a suspicion of his morals.
“But what then,” I asked this counsel, “is collusion?”
“Collusion,” he said, “is a secret agreement.”
“But if two people agree to get divorced—”
“Oh, that’s collusion, absolutely. There’s no divorce by common consent. If one party says, ‘My wife, or my husband, has broken our marriage vow, I want to be freed from my side of it,’ the court says, ‘By all means.’ But if two people say simply, ‘We’re fed up with each other, we want a divorce,’ the court says, ‘No; you made an agreement for life and must abide by it.’ If there is any suspicion that one of them acted with the knowledge and consent of the other in a way that would make divorce possible, the court will refuse the decree. Any evidence of mutual agreement is evidence of collusion.”
“But in the case of the merchant who wrote to his wife?”
"The letter was never produced in court.”
“But surely,” I said, “most of our divorce suits are undefended, and an undefended action is evidence in itself of mutual agreement—”
He shook his head, smiling.
“Prove it,” he suggested gently. “Otherwise, why should not non-defense be taken simply as acknowledgment of guilt?”