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
Henry H. Foster, Jr.*
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.
introduction by sociologist Robert K. Morton.


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