Clandestine marriage

“ Absolute divorce is authorized on the same two grounds as in 1852, the unjust discrimination regarding the husband's infidelity being still maintained. On the other hand, "a divorce from the bond of matrimony, or from bed and board, at the discretion of the court," may now be decreed for (1) adultery of the husband; (2) extreme cruelty; (3) procurement of the marriage by force or fraud; (4) want of legal age—sixteen for males and fourteen for females—if after that age the marriage has not been voluntarily ratified; (5) wilful abandonment for three years ”

“ It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. ”

“ Resolved, That the fundamental error of the whole structure of legislation and custom, whereby women are practically sustained, even in this republic, is the preposterous fiction of law, that in the eye of the law the husband and [Pg 594] wife are one person, that person being the husband; that this falsehood itself, the deposit of barbarism, tends perpetually to brutalize the marriage relation by subjecting wives as irresponsible tools to the capricious authority of husbands ”

“ For every unmarried mother who is persecuted by society, there are ten unmarried women who escape the social consequences of an unauthorized sexual relation. For every faithful husband there is another who deceives his wife with other women; nor are wedded wives by any means always faithful to their marriage vows. There are people who live together in the sexual uncleanness of loveless marriages; and there are those who live purely in extra-legal union. ”

“ After having so nobly disentangled themselves from the shackles of Parental Authority, by a Clandestine Marriage, they were determined never to forfeit the good opinion they had gained in the World, in so doing, by accepting any proposals of reconciliation that might be offered them by their Fathers—to this farther tryal of their noble independance however they never were exposed. ”

“ It is agreed by all jurists that the only justification for the greater severity with which matrimonial infidelity is visited on women as compared with men is the greater social degradation with which society visits women who have offended. To penalise their offence by prohibiting re-marriage would only perpetuate their degradation, and does in fact so perpetuate and increase it in countries where the condemned party in a divorce is forbidden the altar. ”

“ There are doubtless many other causes besides infidelity for which the welfare of society and the happiness of individuals require that marriage may be dissolved. "It is a scandal to English legislation," observes [112] Lecky, that divorce "should not be granted when one of the partners has been condemned for some grave criminal offence involving a long period of imprisonment or penal servitude, or for wilful and prolonged desertion, or for cruelty, however atrocious, if it is not coupled with adultery. ”

“ We cannot fail to realize as we grasp the nature and direction of the modern movement of divorce that the final tendency of that movement is to efface itself. Necessary as the Divorce Court has been as the inevitable corollary of an impossible ecclesiastical conception of marriage, no institution is now more hideous, more alien to the instinctive feelings generated by a fine civilization, and more opposed to the dignity of womanhood. ”

“ But there are other ways of dissolving a marriage; and under some conditions the woman has a chance. Exchange of wives, when [230] both are childless, is "permitted only after the death of their parents, and, of course, with the consent of the chiefs." A couple without children may separate by mutual consent; and "when a woman is treated with cruelty by her husband, she may put herself under the protection of another man, with the intention of becoming his wife. ”

“ Thus we see that a husband may will away from his wife her own original property, but a wife may not even will away her own, unless the right be specially reserved to her before marriage. And yet it is urged that women have no need of votes, their interests being so well looked after by their fathers, husbands, and brothers!
We have thus seen that the "rights of every Englishman" are destroyed in women by marriage; one would imagine that matrimony was a crime for which a woman deserved punishment, and that confiscation and outlawry were the fit rewards of her misdeed. ”

“ It will be obvious that under Utopian conditions it is the State that will suffer injury by a wife's misconduct, and that a husband who condones anything of the sort will participate in her offence. A woman, therefore, who is divorced on this account will be divorced as a public offender, and not in the key of a personal quarrel; not as one who has inflicted a private and personal wrong. This, too, lies within the primary implications of marriage. ”

“ But you cannot deny that it is still the law that a man and woman may be married in one jurisdiction and adjudged guilty of adultery or bigamy in another; that the marriage tie is broken daily on the most frivolous grounds and with the most indecent haste ”

“ You know how inadequate are the marriage laws to women. You must know, Sir, as I have found out in my experience of public life, how abominable, atrocious, and unjust are the divorce laws as they affect women. You know very well that the married woman has no legal right to the guardianship of her children. Then, too, the illegitimacy laws; you know that a woman sometimes commits the dreadful crime of infanticide, while her partner, the man, who should share her punishment, gets off scot free. ”

“ Or let us assume that the husband sues for divorce on the plea that his wife does not love him. If she admits the plea, the state must grant the divorce; for love only is the ground of a legal marriage, and where there is no love the relation is merely a concubinage. What reasons could a woman have, indeed, to continue to live with a man whom she confessedly did not love? These reasons could only be of an external character, and the man can not allow himself to be made their tool. ”

“ Our time has displaced the ancient division of labour, by which the wife cared for the children and the husband provided maintenance. But the law of marriage dates from a time when this division held full sway and when it was, therefore, almost impossible for a woman to receive protection for herself and her child otherwise than in matrimony. Now society has begun to provide such protection for unmarried mothers, and the renunciation of liberty by which the wife purchases the protection of marriage is seen to be not only more and more unworthy, but also unnecessary. ”

“ How degrading it is to the best instincts of our sex that a woman can get a decree of nullity of marriage by proving certain physical disabilities on the part of the husband, which in no way affect her happiness, health, or self-respect, yet can only obtain the partial relief of separation if her husband be a drunkard, an adulterer, and a criminal—so long as she cannot additionally prove cruelty or desertion! ”

“ Let no one fling responsibility aside easily. Let it always be a question of long consideration, of advice from friends, perhaps even from judges. But I cannot help feeling that when through years this conviction that there is no reality in a marriage persists, this is the one really decent and sufficient reason for declaring that that marriage is dissolved. Let us have done with the infamous system now in force, by which a man and woman must commit adultery or perjury before they can get us to admit the patent fact that their marriage no longer exists as a reality. ”

“ Thus that marriage should only be lawful with one wife, that it should be for life, that it should be terminable by the infidelity of either husband or wife, are rules of right; not of morality, as such, but of right. Without such rules the rights of the married persons are not maintained. Those outward conditions of family life would not be secured to them, which are necessary on the whole for the development of a free morality. ”

“ The necessity of polygamy, therefore, does not appear; yet when a man seduces a woman, it should I think, be termed a LEFT-HANDED marriage, and the man should be LEGALLY obliged to maintain the woman and her children, unless adultery, a natural divorcement, abrogated the law. ”

“ It appears, then, so far as present investigation enables us to determine, that there is not sufficient evidence for assuming that wife-capture, except in isolated cases, has generally grown into marriage by purchase. As a rule, even among the lowest races, foreign or warlike capture is an exceptional method of procuring wives; while bride-stealing at home, though the symbol may sometimes be sanctioned, is merely looked upon as illegal or even immoral; [573] and, therefore, with advancing civilization it yields to contract as the highest means of effecting a marriage. ”

“ Less polished and more luxurious nations have either not perceived the bad effects of polygamy; or, if they did perceive them, they who in such countries possessed the power of reforming the laws, have been unwilling to resign their own gratification.” In all Christian countries, polygamy is universally prohibited; and the marriage of a second wife during the lifetime of the first, is ranked with the most dangerous and cruel of those frauds by which a woman is cheated out of her fortune, her person, and her happiness. ”

“ The undoubted iniquity of our existing marriage laws is always spoken of as an injustice to the woman and the changes in the direction of greater freedom which are advocated as a relief to the wife bound to a bad or otherwise unendurable husband. ”

“ With the rise of property, industry, and a more complex social organization, giving birth to new desires and ambitions, contract by the guardian in part supersedes self-betrothal. Purchase and its occasional alternative, capture, depriving woman of her natural right of assent, tend to reduce the wife to concubinage and domestic slavery. But fortunately the victory is not complete. Just as monogamy is never displaced by polygyny as the natural type of marriage, so the consent of woman as the normal condition of matrimonial union is never entirely destroyed by wife-purchase. ”

“ It has indeed been held, to such a length does the law extend its protection and privileges to the female, that even the concealment by a wife from the husband at the time of marriage that she was then pregnant by another man was no ground for declaring the marriage null and void. ”

“ And her school-girl creed––Love and Service! Fine. Only there’s a prior law––self-preservation; and another––race preservation! By God, how are you going to love and serve if girls stop having babies?
“And as for this silly condemnation of the marriage ceremony, merely because some sanctified Uncle Foozle once inserted the word ‘obey’ in it––just because, under the marriage laws, tyranny and cruelty have been practised––what callow rot!
“Laws can be changed; divorce made simple and non-scandalous as it should be; all rights safeguarded for the woman ”

“ If a woman were unlawfully restrained of her liberty, her husband might take advantage of a habeas corpus to get possession of her; but it is not probable that any court, in England or this country, would now grant one to compel a wife to live with her husband against her will. Still, the estimate of the marriage relation which such laws sustain is so low, that one never can tell what will happen. ”

“ Their severity regarding the grounds of separation can only be appreciated at its real value by keeping in mind, as already suggested, that the sword of the judge often cut the marriage tie on account of adultery or other crimes; and that some of the reformers, notably Luther, Brenz, and Melanchthon, were inclined in certain cases to tolerate concubinage or even bigamy, in preference to full divorce. ”

“ If there are no children, the surviving husband or wife takes all the property, real and personal; if there are children, one half. Husband must support family.
DIVORCE: Absolute for bigamy, desertion for one year, adultery, impotency, when wife at time of marriage was pregnant by another than her husband, extreme cruelty, fraudulent contract, habitual drunkenness, gross neglect of duty, conviction and imprisonment for felony subsequent to marriage. ”

“ With all the modification of the last quarter, of a century, our English law of marriage still invests the husband with a sovereignty almost despotic over his wife. It secures to him her personal service and savings, and the control and custody of her person as against herself. Having thus reduced the wife to a dead pauper owing service to her husband, our shrewd forefathers, to secure the bond, confiscated her natural obligations as a child and a mother. Whether married or single, only inability excuses a son from the legal support of indigent and infirm parents. ”

“ A marriage cannot be dissolved for insanity or crime, or for cruelty, however abominable, or for desertion, or for adultery by both parties; and it cannot be dissolved for any cause whatever if both husband and wife have agreed that they wish it dissolved. In all these cases the law regards the man and woman as bound together for life. A special official, the King's Proctor, is employed to prevent divorce when there is collusion and when both parties have committed adultery. ”

“ It is not at all doubtful that it sanctions, and sometimes eminently blesses, polygamy; that it strictly enjoins that, in every case of adultery, both parties should be put to death; that it makes it a capital offence for a man to have intercourse with a woman who, though unmarried, was betrothed to another; that it commands that a man who had defiled an unbetrothed virgin should be compelled to marry her; that it forbids marriage with aliens in religion ”