THE LAW OF DIVORCE.

New Zealander, Volume 9, Issue 736, 4 May 1853, Page 3

THE LAW OF DIVORCE.

(Fiom the “Sydney Htridd,” Jan. 31.) When n British subject emigrates to a British colony he naturally expects that he shall enjoy the rights, privileges, and advantages which he would have enjoyed had he remained at home, II c might have been deterred from leaving the land of his birth to come to the land ot his proposed adoption, if in comparing the laws by which both are governed he discovered that he should be deprived in the colony of rights inherent to British subjects,—rights which are every day exercised in the mother country, and which every Englishman appreciates and values. There is one branch of law, however, from which the Australian colonist is excluded, viz., the Law of Divorce. We say that he is excluded from it, because the circuitous, tardy, and expensive process by which the law of Divorce can only be carried into effect amounts to its being prohibitory and inoperative. Even in England the expense of procuring a divorce, a vinculo matrimonii. is so costly that the advantage of obtaining it is almost confined to the wealthy. It is wise that facilities should not be afforded for granting divorces; were it otherwise every conjugal squabble might he deemed a pretext for a dissolution of marriage. The fact of the extreme difficulty of severing the marriage bond is a powerful reason for husbands and wives to accommodate their tempera and dispositions to each other. We quitefconcur in a lucid and elegant judgment of Sir William Scott, delivered in 1790, in which, amongst other things, he saj r s:— « For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals ; yet it must he carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives; from the necessity ot remaining bus-

bands and wives; fornecessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples, who now pass through the world with mutual comfort, with attention to their common offspring arid to the moral order of civil society, might have been at this moment living in a state of mutual unkindness—in a state of estrangement from their common offspring —and in a state of the most licentious and unreserved immorality. The happiness of some individuals must be sacrificed to the greater and more general good.” But there are peculiar cases in which there ought to be a power extended to every part of the British Dominions, to declare marriages void which have been concocted in fraud, and where mere children are entrapped by designing people into clandestine and illegal marriages. So far back as the year 1 GOO, an Act of the British Parliament was passed for dissolving the marriage of Miss Wharton with the brother of Argyle; and for the more recent case of abduction of Miss Turner by Mr. Edward Gibbon Wakefield, an Act of Parliament, founded on the former precedent, was obtained to declare the marriage void. Acts for this purpose are comparatively rare, but a case occurred eighteen months ago in which a young girl was fraudulently and by conspiracy inveigled into a marriage; and the father, a citizen of Sydney, has recently invoked the assistance of our Legislature to procure the release of his daughter from the alleged marriage. A proceeding so novel to the colony induces us to turn to the Royal Instructions. And on the 17th October, 1851, we find that the Governor-General sent down to the Legislative Council the following message : “ The Governor-General avails himself of the earliest opportunity of placing before the Legislative Council a copy of that portion of the Queen’s Instructions by which it is her Majesty’s royal will and pleasure that he should be guided in assenting to or dissenting from, or reserving for the signification of her Majesty’s pleasure, such Bills as the Council may pass. “ These instructions appear to vary in some respects from those previously issued to his Excellency, and which were communicated to the Legislative Council on the 9th of September, 1810.” In the ninth paragraph of these Royal Instructions, of the 17th of October, 1851, the GovernorGeneral is told that it is the further will and pleasure of the Queen that “ lie is not to propose or assent to any Act whatever for the divorce of persons joined together in holy matrimony.” This passage in the Royal Instructions has led us to inquire what rights and privileges on this subject have been conceded to other British colonies ; and we find that in several of the colonies powers of divorce or dissolving marriages have been conferred. “ The Supreme Courts of judicature of the presidencies in the East Indies, on the ecclesiastical side, grant sentences of divorce, a mensd et thoro. In the West Indian colonies, except British Guiana, St. Lucia, and Trinadad, there exists no authority in any judicial tribunal to entertain a suit for a divorce, nor does the parent state permit their Legislatures to grant it.” But though all the West India colonies do not appear to enjoy the right of divorce, some do, and these, we have pointed out, are excepted. “ In Nova Scotia a power was vested in the Governor and Council of dissolving marriages for adultery, cruelty, wilful desertion, and withholding necessary maintenance for three years together ; but by a subsequent statute this power has been confined to cases of adultery and cruelty. So again—“ln New Brunswick the power of granting divorce from the bond of matrimony, and a separation from bed and board, is also vested in the Governor and Council.” Here are ample precedents for ns to endeavour to secure rights and privileges which have been conceded to some of the West Indian possessions, to the East Indies, to Nova Scotia, and New Brunswick. We were surprised at the opposition raised by the learned Attorney-General to the Bill brought into the Council for declaring void the alleged marriage between Miss Blake and Patrick Mehan. The precedents to which we have alluded must have escaped his observation, or it is difficult to suppose that his opposition would have been so marked and determined. The course which Mr. Wentworth adopted in bringing in the Bill relieves the Council from any embarrassment. On his motion the House has sent an address to the Governor-General, praying His Excellency to submit a copy of the Bill to the Judges of the Supreme Court, “ for the purpose of procuring their opinion and advice upon the propriety of passing the Bill.” If the Judges’ report he favourable there is little doubt but that the Bill will be passed into an Act next session, and more particularly as Mr. Wentworth intimated his intention of adding a clause that the Act was not to take effect until it had received the assent of Her Majesty. The law, however, ought not to remain as it is ; and we see no reason why rights and privileges which have been conferred on some British colonies should not. be extended to us. It would lie conferring a benefit on the colony if some member of the Legislative Council were to look into the question during the recess, and see if similar laws of divorce now in operation in Nova Scotia and New Brunswick could not be adapted to this colony.