We may now turn to the law of divorce as administered in the other
countries of the modern world. On the main question whether marriage is
to be considered indissoluble they will be found to range themselves on
one side or the other according to the influence upon them of the Church
of Rome and its canon law.
In _Scotland_ it has long been the law that marriage can be dissolved at
the instance of either party by judicial sentence on the grounds of
adultery or of desertion, termed non-adherence, and the spouses could in
such case remarry, except with the paramour,--at all events if the
paramour was named in the decree (and the name is sometimes omitted for
that reason). A divorce _a mensa et thoro_ could also be granted for
cruelty. By the Court of Session Act 1830, the jurisdiction in divorce
was transferred from a body of commissaries to the court of session.
By the law of _Holland_ complete divorce could be granted by judicial
sentence on the grounds of adultery or of wilful and malicious
desertion, to which were added unnatural offences and imprisonment for
life, and such divorce gave the power of remarriage, except with the
person with whom adultery was proved to have been committed, but there
would seem to be a doubt whether this power extended to the guilty party
(Voet, _De divortiis_, lit. 24, tit. 2). Divorce _a mensa et thoro_
could be granted on the grounds allowed by the canon law.
The Code of _Prussia_ of 1794 contained elaborate provisions which gave
great facility of divorce. A complete divorce could be obtained by
judicial sentence for the following causes:--(1) Adultery or unnatural
offences; and adultery by a husband formed no bar to his obtaining a
divorce against his wife for adultery; and even an illicit intimacy,
from which a presumption of adultery might arise, was held sufficient
for a divorce. (2) Wilful desertion. (3) Obstinate refusal of the rights
of marriage, which was considered as equivalent to desertion. (4)
Incapacity to perform the duties of marriage, even if arising subsequent
to the marriage; and the same effect was assigned to other incurable
bodily defects that excited disgust and horror. (5) Lunacy, if after a
year there was no reasonable hope of recovery. (6) An attempt on the
life of one spouse by the other, or gross and unlawful attack on the
honour or personal liberty. (7) Incompatibility of temper and
quarrelsome disposition, if rising to the height of endangering life or
health. (8) Opprobrious crime for which either spouse has suffered
imprisonment, or a knowingly false accusation of such crime by one
spouse of the other. (9) If either spouse by unlawful transactions
endangers the life, honour, office or trade of the other, or commences
an ignominious employment. (10) Change of religion. In addition to these
causes, marriages, when there were no children, could be dissolved by
mutual consent if there be no reason to suspect levity, precipitation or
compulsion; and a judge had also power to dissolve a marriage in cases
in which a strongly rooted dislike appeared to him to exist. In all
cases of divorce, but sometimes subject to the necessity of obtaining a
licence, remarriage was permissible (see Burge, _Commentaries on
Colonial and Foreign Law_, vol. i. 649).
Before 1876 only a divorce _a vinculo_ could be obtained in some of the
German states, especially if the petitioner were a Roman Catholic. The
only relief afforded was a "perpetual separation." By the Personal
Status Act 1875 perpetual separation orders were abolished and divorce
decrees allowed in cases where the petitioners would, under the former
law, have been entitled to a perpetual separation order. However, two
Drafting Commissions under the act declined to alter the new rule, but
under pressure from the Roman Catholic party the Reichstag passed a law
introducing a modified separation order, termed "dissolution of the
conjugal community" (_Aufhebung der ehelichen Gemeinschaft_). This order
can be converted into a dissolution of the marriage at the option of
either party. Under the Civil Code of 1900 a petitioner can obtain a
divorce or judicial separation on "absolute" or "relative" grounds. In
the former case if the facts are established the petitioner is entitled
to the relief prayed for; in the latter case, it is left to judicial
discretion. The absolute grounds are adultery, bigamy, sodomy, an
attempt against the petitioner's life or wilful desertion. The relative
grounds are (a) such grave breach of marital duty or dishonourable or
immoral conduct as would disturb the marital relation to such an extent
that the marriage could not reasonably be expected to continue; (b)
insanity, continued for more than three years during the marriage, and
of so severe a nature that intellectual community between the parties
has ceased and is not likely to be re-established. A divorced wife, if
not exclusively the guilty party, may retain her husband's name; but if
exclusively guilty, her former husband may compel her to resume her
maiden name.
By the law of _Denmark_, according to the Code of King Christian the
Fifth, complete divorce could be obtained for incest; for leprosy,
whether contracted before or after marriage; for transportation for
crime or flight from justice, after three years, though not for crime
itself; and for exile not arising from crime, after seven years.
In _Sweden_ complete divorce is granted by judicial sentence for
adultery, and in _Russia_ for that cause and also for incompatibility of
temper (Ayliffe, Par. 49). On the other hand, in _Spain_ marriage is
indissoluble, and the ecclesiastical courts have retained their
exclusive cognizance of matrimonial causes. In _Italy_ certain articles
of the Civil Code deal with separation, voluntary and judicial, but
divorce is not allowed in any form.
In _France_ the law of divorce has had a chequered history. Before the
Revolution the Roman canon law prevailed, marriage was considered
indissoluble, and only divorce _a mensa et thoro_, known as _la
separation d'habitation_, was permitted; though it would appear that in
the earliest age of the monarchy divorce _a vinculo matrimonii_ was
allowed. _La separation d'habitation_ was granted at the instance of a
wife for cruelty by her husband or false accusation of a capital crime,
or for habitual treatment with contempt before the inmates of the house;
but a wife could not obtain a separation for adultery by her husband,
although he had his remedy in case of adultery by his wife. In every
case the sentence of a judicial tribunal, which took precautions against
collusion, was necessary. But the Revolution may be said to have swept
away marriage among the institutions which it overwhelmed, and by the
law of the 20th of September 1792 so great facility was given for
divorce _a vinculo matrimonii_ as practically to terminate the
obligations of marriage. A reaction came with the Code Napoleon, yet
even under that system of law divorce remained comparatively easy.
Mutual consent, expressed in the manner and continued for a period
specified by the law, was cause for a divorce (the principle of the
Roman law being adopted on this point), but such consent could not take
place unless the husband was twenty-five years of age and the wife
twenty-one, unless they had been married for two years, nor after twenty
years of marriage, nor after the wife had completed her forty-fifth
year; and further, the approval of the parents of both parties was
required. In case of divorce by consent, the law required that a proper
agreement should be made for the maintenance of the wife and the custody
of the children. A husband could obtain a divorce _a vinculo matrimonii_
for adultery, but the wife had no such power unless the husband had
brought his mistress to the home. Both husband and wife could claim
divorce on the ground of outrage, or grievous bodily injury, or
condemnation for an infamous crime. If the divorce was for adultery, the
erring party could not marry the partner of his or her guilt. A divorce
_a mensa et thoro_ could be obtained on the same grounds as a divorce _a
vinculo_, but not by mutual consent; and if the divorce _a mensa et
thoro_ continued in force for three years, the defendant party could
claim a divorce _a vinculo_. On the restoration of royalty in 1816
divorce _a vinculo_ was abolished, and pending suits for divorce _a
vinculo_ were converted into suits for separation only.
Divorce in France, after the repeal of the provisions respecting it in
the Code Napoleon in 1816, was re-enacted by a law of the 27th of July
1884, the provisions of which were simplified by laws of 1886 and 1907.
But a wide departure was made by these laws from the terms of the Code
Napoleon. Divorce by consent disappeared, and the following became the
causes for which divorce was allowed: (1) Adultery by either party to
the marriage at the suit of the other, without, in the case of adultery
by the husband, the aggravation of introduction of the concubine into
the home required by the Code; (2) violence (_exces_) or cruelty
(_sevices_); (3) _injures graves_; and (4) _peine afflictive et
infamante_. _Exces_ is defined by Locie as "a generic expression
comprising all acts tending to compromise the safety of the person,
without distinction as to their object or motive, premeditation as well
as furious anger, attempts upon life as well as serious woundings."
_Sevices_ are acts of ill-treatment less grave in character, which,
while not endangering life, render existence in common intolerable
(Kelly's _French Law of Marriage_, p. 122). _Injures graves_, as to
which the courts have considered themselves entitled to exercise a wide
discretion, have been defined as acts, writings or words which reflect
upon the honour or the reputation of the party against whom they are
directed. The courts have held that retraction at the trial does not
relieve the party from the consequences of an _injure grave_, and that
publicity is an aggravating but not a necessary element. A letter from
one spouse to the other may constitute an _injure_ and the courts have
further held themselves at liberty to consider letters written after
divorce proceedings have been commenced. _Injures graves_ have also been
considered to include material injuries, and among these have been
classed habitual and groundless refusal of matrimonial rights,
communication of disease and refusal to consent to a religious ceremony
of marriage. Habitual but not occasional drunkenness has also been held
to fall within the definition of an _injure grave_. _Peine afflictive et
infamante_ signifies a legal punishment involving corporal confinement
and moral degradation.[4]
In addition to its recognition of full divorce, the French law
recognizes separation of two kinds, one _separation de biens_ and the
other _separation de corps_. The effect of _separation de biens_ is
merely to put an end to the community of goods between the spouses. It
necessarily follows, but may be decreed independently of _separation de
corps_. The grounds of _separation de corps_ are the same as those for a
divorce; and if a _separation de corps_ has existed for three years, it
may be turned into a divorce upon the application of either party to the
court.
Until 1893 a wife _separee de corps_ obtained only the capacity
attaching to a concomitant _separation de biens_; that is to say, she
recovered the enjoyment and management of her separate property, but
could not deal with real property, nor take legal proceedings, without
the sanction of her husband or of the court. But by a law of the 6th of
February 1893 a wife _separee de corps_ obtains "the full exercise of
her civil capacity, so that she shall not need to resort to the
authority of her husband or of the court." In case of reconciliation,
the wife returns to the limited capacity of a wife _separee de biens_,
and after the prescribed notification of such change of status it
becomes binding on third persons.
The provisions of French law with regard to the custody of the children
of a dissolved marriage, and with regard to property, do not differ
materially from those prescribed by the English acts. The custody of
children is given to the party who has obtained the divorce, unless the
court, on the application of the family, or the _ministere public_,
consider it better, in the interests of the children, that custody
should be given to the other party or a third person; but in every case
the right of both father and mother to supervise the maintenance and
education of the children, and their liability to contribute to their
support, are continued.
The law in France as to property on a divorce has been accurately stated
as follows:--
"Divorce in France effects a dissolution of the matrimonial regime of
property as well as of the marriage itself. The decree appoints a
notary, who is charged with the settlement of the pecuniary interests
of the parties. By a stereotyped form of procedure the appointment is
made invariably for the purpose of liquidating _la communaute ayant
existe entre les epoux_, irrespective of whether the regime really was
that of community or another. In the case of aliens, therefore,
married under the rule of separate property, it is necessary carefully
to set this out in the notarial deed of liquidation, in order to
defeat the presumption which might be raised by the wording of the
decree that a community really did exist. The party against whom the
divorce has been pronounced loses the benefit of all settlements made
upon him or her by the other party, either by the marriage contract or
since the marriage. On the other hand, the party in whose favour the
divorce has been pronounced preserves the benefit of all settlements
made in his or her favour by the unsuccessful party. If no such
settlements were made, or if those made appear inadequate to ensure
the subsistence of the successful party, the court may grant him or
her permanent alimony out of the property of the other party, not to
exceed one-third of the income, and revocable in case it ceases to be
necessary" (Kelly, p. 130).
On a divorce both parties are at liberty to remarry. The husband could
remarry at once; but the wife (art. 296 of the Code) was only allowed to
remarry after an interval of ten months. By the act of 1907, this
article was abolished, and the wife allowed to remarry as soon as the
judgment or decree granting the divorce has been entered, providing 300
days have elapsed since the first judgment was pronounced. A divorced
husband may remarry his divorced wife, but if he does so, he cannot be
again divorced, except on the ground of a sentence to a _peine
afflictive et infamante_ passed on one of them since their remarriage.
There is, however, this limitation on the power of remarriage of
divorced persons, that the party to the marriage against whom the decree
has been pronounced is not allowed to marry the person with whom his or
her guilt has been established. Such person, however, has no such rights
as are recognized in him or her according to English law, and cannot
take any part in the proceedings. But his or her name is referred to in
the proceedings only by an initial; and French law goes even further in
the avoidance of publicity, inasmuch as the publication of divorce
proceedings in the press is forbidden, under heavy penalties.
By a law of the 6th of February 1893 French jurisprudence, more complete
at least, and perhaps wiser, than English, dealt with a matter
previously in controversy, and decided that after a divorce the wife
shall resume her maiden name, and may not continue to use the name of
her divorced husband; nor may the husband, for business or other
purposes, continue to use the name of his wife.
By the law of 1886 the special procedure in divorce previously in force
under the Code and under the law of 1884 was abolished, and it was
provided that matrimonial causes should be tried according to the
ordinary rules of procedure. The action therefore, when brought, follows
the methods of procedure common to other civil proceedings. But there
still remain certain necessary preliminaries to an action of divorce. A
petition must be presented by a petitioner in person to the president of
the court sitting in chambers, with the object of a reconciliation being
effected. This is known as the _premiere comparation_. If the petitioner
still determines to proceed, there follows the _seconde comparation_, on
which occasion both parties appear before the president. If the
president fails to effect a reconciliation, he makes an order permitting
the petitioner to proceed, and deals with the matters necessary to be
dealt with _pendente lite_, such matters being (1) separate residence,
(2) alimony, (3) possession of personal effects, (4) custody of
children. As regards residence, the wife is compelled to adhere during
the proceedings to the residence assigned to her, but no similar
restriction is placed on the husband. Alimony _pendente lite_ is in the
discretion of the court, having regard to the means of the parties, and
includes a proper provision for costs. As regards the custody of
children, the Code and the law of 1884 gave it to the husband, unless
the court otherwise orders, but the law of 1886 leaves the matter wholly
in the discretion of the court.
There are certain technical rules of evidence on the trial of a divorce
action. It is a general principle of the French law of evidence that
documentary evidence is the best evidence, and oral testimony only
secondary. In divorce cases adultery _flagrante delicto_ can be proved
by the official certificate of the commissary of police. Letters between
the husband and wife are admissible in evidence. As to letters between
the parties and third persons, the law, which has been doubtful, now
appears to be that the wife may produce only such letters from third
parties to her husband as have come into her possession accidentally,
and without any ruse or artifice on her part; but the husband may put in
evidence any letters written to or by his wife which he has obtained by
any, short of criminal, means. If the documents put in evidence are not
sufficient to satisfy the court, there follows an investigation by means
of witnesses, termed an _enquete_. A schedule of allegations is drawn
up, and a judge, termed a _juge-commissaire_, is specially appointed to
conduct the inquiry. Relatives and servants, though not competent
witnesses in ordinary civil actions, are so in divorce proceedings.
Cross petitions may be entered; the substantiation of a cross petition,
however, does not have the effect, in some cases given to it by English
law, of barring a divorce, but a divorce may be, and often is, granted
in favour of and against both parties _pour torts reciproques_. When a
case comes on for trial, it is in the power of the court to order an
adjournment for a period not exceeding six months, which is termed a
_temps d'epreuve_, in order to afford an opportunity for reconciliation.
It is said, however, that this power is seldom exercised. An appeal may
be brought against a decree of divorce within two months; and a decree
made on appeal is subject to revision by the court of cassation within
two months. Both references to the court of appeal and the court of
cassation operate as a stay of execution. A decree must, by the law of
1886, be transcribed on the register of marriages within two months from
its date, and failing this transcription, the decree is void. The
transcription must be made at the place of celebration of the marriage,
or, if the parties are married abroad, at the place where the parties
were last domiciled in France. If the parties, after having married
abroad, return to France, it has been provided, by a circular of the
_Procureur de la Republique_ in 1887, that the transcription may be made
at the place of their actual domicile at the time of action brought, a
rule which has been held to apply to the divorce of aliens in France.
The effect of transcription does not relate back to the date of the
decree.
Opinions may differ as to the relative merits of the English and
French law relating to divorce. But it cannot be denied that the
French law presents a singularly complete and well-considered system,
and one which, obviously with the English system in view, has
endeavoured to graft on it provisions supplementing its omissions, and
modifying certain of its terms in accordance with the light afforded
by experience and the changed feelings of the modern world. The effect
of the laws of 1884 and 1886 in France has been great. The act of 1907
dealing with divorce, coupled with that of the 21st of July of the
same year dealing with marriage, may also be said to mark an epoch in
the laws relating to women. During the five years from 1884 to 1888
the courts granted divorces in 21,064 cases, rejecting applications
for divorce in 1524. In addition, there were 12,242 applications for
judicial separation, of which 10,739 were granted. A distinguished
French writer, the author of a work of singular completeness and
accuracy on the judicial system of Great Britain has compared these
figures with the corresponding result of the English act of 1857. His
conclusion is expressed in these words: "On voit qu'en cinq annees nos
tribunaux out prononce trois fois plus de divorces que la haute cour
d'Angleterre n'en a prononce en trente ans. Je n'insiste pas sur les
conclusions morales a tirer de ce rapprochement" (Comte de
Franqueville, _Le Systeme judiciaire de la Grande-Bretagne_, ii. p.
171). It is, however, practically impossible to compare the number of
divorces in France and in England with exact justice, because, as will
have been seen above, the causes of divorce in France materially
exceed those recognized by English law; and the absence in France of
any official performing the functions assigned to the king's proctor
in England cannot but have great influence on the number of
applications for divorce, as well as on their results. (ST H.)