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7 W. Ontario L. Rev. 18 (1968)
Divorce: The Public Concern and the Private Interest

handle is hein.journals/uwolr7 and id is 21 raw text is: DIVORCE: THE PUBLIC CONCERN AND THE PRIVATE INTEREST Henry H. Foster, Jr.* Introduction The paranoid preoccupation with guilt or fault that is so characteristic of our traditional law of divorce brings to mind the comparison of the philosopher, the clergyman, and the lawyer. A philosopher, it is said, is a man who goes into a dark cellar at midnight to look for a black cat that isn't there; he is to be distinguished from the clergyman who sees the cat; and from the lawyer who enters the cellar with a cat hidden in his pocket, then emerges to produce it in triumph! In the case of divorce, the black cat of marital fault pos- tulated by philosophers and clerics is supplied by lawyers in judicial proceedings which might as well be held in a dark cellar at mid-night. Almost never does the divorce court do more than grope in the dark, for in the United States over ninety per cent of divorce cases are uncontested,' in England ninety-three per cent are undefended,2 and the figure is said to be over ninety per cent for Canada.3 Moreover, the court proceeding usually is over within a matter of minutes.4 To those who are concerned with the problem of divorce re- form, or for that matter with the divorce rate, the significance of the uncontested case must be reckoned with, for if over ninety per cent of divorce cases involve an appearance by only the petitioner, for a few brief minutes, it follows that the premises and assump- tions of divorce law have been undermined and circumvented. In practice, although not in theory, what fairly may be described as divorce by consent surely has replaced the accusatorial system if only one partly to the contest shows up,5 and the significant and meaningful part of processing the case occurred in law office * Professor of Law, New York University. This paper was delivered at London, Ontario on March 30, 1967. 1. See Foster, Common Law Divorce, 46 MINN. L. REv. 43, 56, (1961). 2. THE LAW COMMISSION, Reform of the Grounds of Divorce The Field Choice 14 (1966). 3. Payne, Brief to the Special Joint Committee of the Senate and House of Commons on Divorce 3 (1966). 4. THE LAW COMMISSION, op. cit. supra note 2 at 31. 5. See O'GORMAN, LAWYERS AND MATRIMONIAL CASES (1963) and the introduction by sociologist Robert K. Morton. -18-

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