WHAT IS MARRIAGE

Sun (Auckland), Volume IV, Issue 1021, 11 July 1930, Page 16

WHAT IS MARRIAGE

BACHELOR JUDGE’S DISCUSSION WITH BARRISTER SOUL UNION FICTION A remarkable discussion took place at Leeds Assizes in the past month between Mr. Justice McCardie, who is a bachelor, and Mr. C. J. Frankland, a married barrister. The case was one in which the wife ot Dr. Harry Edelston, assistantmedical officer of the West Riding Mental Hospital at Wakefield, sued her husband for damages. The action arose out or injuries received by Mrs. Edelston, before she was married, in a collision between Dr. Edelston's motor-car and a horse and cart. The contention was that the accident was due to the negligence of Dr. Edelston, who, it was alleged, dimmed his lights and drove down a hill at 25 miles an hour. As a result of the accident, Mrs. Edelston had to have her left eye removed. Mr. Frankland, for the husband, claimed that the action was barred by the Married Women's Property Act. The parties, he said, were per fectly happily married, and the action was a claim against the insurance company. Three Grounds Mr. A. S. Diamond, for the wife, submitted that it was no longer true to say that husband and wife were one in law. Mr. Justice McCardie: A husband finds that maxim is false as soon as he murders his wife. Mr. Franklin said the reason why a wife could not sue her husband, or the husband his wife, was not clear, but there appeared to be three grounds: In the eyes of the law, husband and wife, by the effect of their marriage, become one person; While that could not be entirely true, the individuality of the wife became merged in her husband; and The unseemly spectacle of a wife or husband suing the other. Mr. Justice McCardie: Physically

tbey do not become one on marriage. Mentally, as one knows from observation, they do not. Even the temperaments of people do not change on marriage, and so far as my own notice of married life goes I see few instances to support the theory of a spiritual unity. What does your knowledge of human naturo say, Mr. Frankland? Mr. Frankland: My experience is parallel with that of your Lordship. Mr. Justice McCardie: Are you married? Mr. B'rankland: I am. Mr. Justice McCardie: Then our experiences are not parallel. A "Fiction” Later Mr. Justice McCardie said: There is in marriage, it would appear, no merger, physically, mentally or spiritually. The parties each possess their own bodies; certainly in these days their own minds and their own souls. Marriage is merely an agreement to live together for the procreation of children and the establishment of a home for the benefit of the nation. Mr. Frankland: I admit the fiction. For even in the old days the wife kept her body and mind and lost nothing but her estate. Mr. Justice McCardie: Suppose as in this case, the husband was negng ent and was liable before marriage and the wife lost her right to bring an action on marriage, what is the effect upon that right in event of divorce? Is her right lost by the marriage merger, or is it in the bonds of marriage? Mr. Frankland: In my view divorce ; would revive the right, sublect, of course, to the Statute of Limitations. Mr. Justice McCardie: Your argument is that on marriage there is a merger. If there is a merger, how would dissolution of the marriage destroy that merger? Mr. Frankland: Only by account of what might be called an immerger Mr. Justice McCardie: I should describe it as a submerger. There Las been a complete change In the position of women during the last two or three decades. They have now power as citizens. Mr. Frankland: Some of the power, not all. Mr. Justice McCardie: Women can sway the destinies of Empire, can even destroy this Empire. What would the married women of this country say in a case of this kind? Finally, Mr. Justice McCardie said the point deserved full argument and consideration, and he would be pleased to hear the other side in London, when he would give his ruling.