“Marriage and Divorce”, The Globe (21 November 1864)

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Date: 1864-11-21
By: The Globe
Citation: “Marriage and Divorce”, The Globe [Toronto] (21 November 1864).
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L’Union Nationale and a few other French Canadian journals hostile to Confederation are striving earnestly to excite religious prejudice against the scheme of the Quebec Conference, on the ground that it proposes to commit the questions of marriage and divorce to the charge of the general government. The argument with these objectors is this: Roman Catholics hold peculiar views relative to marriage and divorce, with which Protestants do not sympathize. The Romish Church teaches the marriage is a sacrament, and that under no circumstances is divorce admissible. The mass of Protestants think that for one crime at least divorce may and should be allowed. The Protestant majority in the Federal Parliament, it is held, would be pretty certain to enact laws upon the subject of divorce that would not be in accordance with the religious feelings of the Lower Canada majority; whereas, they argue, if these matters were left to the local parliament, Lower Canada at least would legislate in accordance with the doctrines of the Romish Church. Having stated something in this way, L’Union and its allies affect the indignant, and assail the French members of the Administration as false to their religion and to the sentiments of their people.

There is exceedingly little foundation for this complaint. To begin with, the arrangement will make matters no worse for the Roman Catholics than they are now. The Maritime Provinces have divorce courts already, and Canada has in Parliament a Protestant majority which has repeatedly affirmed the principle of permitting divorce in certain cases by passing special Acts- of divorce. Divorces are therefore now allowed in every part of the proposed Confederation, and no more than that can be said after the Federal Parliament has passed the expected general law upon the subject. A uniform law will have its advantages, as we shall show, but in so far as the principle is concerned, no more violence will be done to the religious feelings of any one than at present.

Properly speaking, however, the existence of a divorce law or a divorce court can do no violence to any man’s conscience. A divorce law is simply a permissive enactment, and no man is compelled to avail himself of its provisions. If it is believed that marriage is a sacrament which the grossest sin cannot invalidate, he is at full liberty to act upon the belief should he ever be so unfortunate as to be the victim of a wrong coming within the scope of a Divorce Act. There is no intolerance in asking him to be content to suffer the consequences of his peculiar religious view himself, and not to strive to inflict them upon other people who do not share his opinions. The intolerance is rather on the side of those who ask that, because some men have particular religious scruples, other men should be debarred from all redress for the foulest of social wrongs. Society has the right, of course to demand that divorce laws shall not be made so lax as to be immoral in their effect. It is the duty of legislators to insist sternly that no separation shall be decreed save for the gravest cause. But further than that, it is not right to go. It is most monstrous, under a religious pretext, to refuse divorces when justice, morality and the interests of society clearly demand that they shall be granted. The extreme of dissolving marriages for inadequate causes, and the other extreme of maintaining the marriage relation in a legal sense where crime has utterly destroyed it, are both undeniably immoral, and both to be shunned in our legislation. But the welfare of the community and the demands of justice, rather than any particular sectarian dogma,  ought to be our guide in deciding what kind of a divorce law ought to be enacted.

The reasons which justify the allotting of these questions of marriage and divorce to the care of the general government are very evident and very conclusive. It is most desirable the here should be but one law in all the Provinces on these subjects. We know what difficulties arise in Great Britain and Ireland from the diversity of the marriage laws of the three kingdoms. The famous Yelverton case, with all its hardships, uncertainties and entanglements, is the direct result of the want of one plain, uniform marriage law for the whole united kingdom. In the United States, too, lamentable results have followed from the mistake of leaving questions of marriage and divorce to be dealt with be the separate State Legislatures.— In some States the law of divorce is strict enough— relieving cases of hardship without allowing separations for trivial causes. In other States, however, where there is less settled public opinion and where too large a section of the people have not the strictest notions of morality, separations are allowed on terms scandalously easy. The varying laws of so many States, moreover, tend to create confusion. Questions involving the rights of property, social position, &c., are sure to arise and to cause most vexatious disputes. Where so many different marriage laws exist some are inevitably defective is the provisions for preventing illegals or improper marriages, and for preserving legal evidences of the marriages which take place. Where one State is stringent in its in its divorce laws and another lax, parties seeking divorces for inadequate causes are sure to seek out the State affording the greater facilities, and to take up temporary residence therein for the purpose of procuring the coveted divorces. The lax divorce law of Indians, in this way, spreads its evil influence far beyond the borders of that particular State. Had the power of dealing with these questions been vested in the Federal Congress at Washington, the whole country would now enjoy uniform laws on marriage and divorce, and it is morally certain that they would be infinitely better enactments than those which have given a few of the States such enviable notoriety. An incalculable amount of inconvenience, mistakes, needless litigation, and a hundred opportunities for fraud would there-by have been avoided.

By making marriage and divorce subjects for general legislation, we secure uniformity in our laws upon those subjects. We infinitely lessen the chances of mistakes, injustices, or frauds in cases of intermarriage between residents of the different Provinces. We avoid the possible scandal of having people remove from one Province to another in order to obtain divorces more readily. We inflict no wrong or hardship anywhere, but we close the door against the change of many wrongs or hardships. Among sensible men, of whatever creed, there can hardly be any doubt that the wiser course has been chosen.

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