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Marriage and Divorce
Laws of the World
Edited by
HYACINTHE RINGROSE, D. C. L.
Author of "The Inns of Court"
"Marriage is the mother of the world, and
preserves kingdoms, and fills cities, and
churches, and heaven itself."--Jeremy Taylor
THE MUSSON-DRAPER COMPANY
LONDON NEW YORK PARIS
1911
Copyright, 1911, by
HYACINTHE RINGROSE
All rights reserved
PREFACE
The purpose of this volume is to furnish to the lawyer, legislator,
sociologist and student a working summary of the marriage and divorce laws
of the principal countries of the world.
There are no geographical boundaries to virtue, wisdom and justice, and no
country has as yet monopolized all that is best in creation. The mightiest
of the nations lacks something which is possessed by the weakest; and
there is no branch of comparative jurisprudence of more general
consequence than that treating of marriage, which is the keystone of
civilization.
By "civilization" we do not mean community life according to the standard
of a single individual or nation, but in its broader and better sense,
meaning the civil organization of any large group of human beings.
This book is not a brief in favour of, or against, any particular social
system or legal code, nor has it a mission to assist in the reformation of
any country's marriage and divorce law. In the compilation which follows
our endeavour is simply to set forth positive law as it exists to-day,
leaving its correction or development to the proper authorities.
The editor has lived among the books of the British Museum, the
Bibliotheque Nationale and other great libraries for years, seeking in
vain for just such a compilation as is here humbly presented. We hope,
therefore, that whatever may be its imperfections the book is justified,
and will be welcomed as the first of its kind.
In its compilation we have been pleased to observe that the evident trend
of modern legislation is toward uniformity among the nations of
Christendom on the vital subjects of marriage and divorce. In fact,
modernity brings uniformity in every department of public and private
law--a consummation devoutly to be wished for by those who feel that, no
matter how short may be the individual's life, he is nevertheless a
kinsman to all of the race who have gone before or are yet to come.
A study of the marriage laws of the world has also brought the happy
conviction that the wholesome view of marriage as the union of one man and
one woman for life, to the exclusion of all others, is the one triumphant
fact of human history which can never lose its prestige.
The surest sign of the general betterment of the world's law is that woman
everywhere is more and more being allowed her natural place in the
community as man's equal and associate. That nation is most enlightened
which treats its womankind the best. All the legislation of the past
century bearing on the subject of marriage has elevated men by giving more
justice to women.
When the next Matrimonial Causes Act predicated upon the labours of the
present Royal Commission on Marriage and Divorce is passed by the British
Parliament, women will be given equal rights with men in our courts of
law. The jurisprudence of England was not built for a day, and we are a
people singularly bound by precedent, but when John Bull moves it is
always in a straight line, and he never turns back.
H. R.
CONTENTS
CHAPTER PAGE
I. INTRODUCTION 7
II. ENGLAND 16
III. SCOTLAND 32
IV. IRELAND 36
V. THE FRENCH LAW 38
VI. THE LAW OF ITALY 46
VII. BELGIUM 53
VIII. SWITZERLAND 57
IX. GERMANY 60
X. AUSTRIA 67
XI. HUNGARY 72
XII. SWEDEN 76
XIII. DENMARK 81
XIV. NORWAY 85
XV. RUSSIAN EMPIRE 89
XVI. HOLLAND 100
XVII. THE JAPANESE LAW 104
XVIII. SPAIN 110
XIX. LAW OF PORTUGAL 117
XX. ROUMANIA 121
XXI. SERVIA 125
XXII. BULGARIA 129
XXIII. KINGDOM OF GREECE 132
XXIV. THE MOHAMMEDAN LAW 137
XXV. UNITED STATES OF AMERICA 148
XXVI. DOMINION OF CANADA 199
XXVII. REPUBLIC OF MEXICO 209
XXVIII. ARGENTINE REPUBLIC 218
XXIX. UNITED STATES OF BRAZIL 223
XXX. REPUBLIC OF CUBA 227
XXXI. COMMONWEALTH OF AUSTRALIA 238
XXXII. DOMINION OF NEW ZEALAND 250
XXXIII. THE HINDU LAW 256
XXXIV. THE CHINESE EMPIRE 265
Marriage and Divorce Laws of the World
CHAPTER I.
INTRODUCTION.
Marriage is the oldest and most universal of all human institutions.
According to the Chinese Annals in the beginning of society men differed
in nothing from other animals in their way of life. They wandered up and
down the forests and plains free from the restraint of community laws or
morality, and holding their women in common. Children generally knew their
mothers, but rarely their fathers.
We are told that the Emperor Fou-hi changed all this by inventing
marriage. The Egyptians credit Menes with the same invention, while the
Greeks give the honour to Kekrops.
In the Sanscrit literature we find no definite account of the institution
of marriage, but the Indian poem, "Mahabharata," relates that until the
Prince Swetapetu issued an edict requiring fidelity between husband and
wife the Indian women roved about at their pleasure, and if in their
youthful innocence they went astray from their husbands they were not
considered as guilty of any wrong.
The Bible story of the institution of marriage is contained in the Second
Chapter of Genesis, 18th to the 25th verse. It is not within the purpose
of this treatise to argue for or against the acceptance of the Bible
narrative, so we call attention without comment to the extreme simplicity
of the wedding ritual as stated in the 22d verse:
"And the rib, which the Lord God had taken from man, made he a woman, _and
he brought her unto the man_."
Among primitive men marriage was concluded without civil or religious
ceremony. Even in modern Japan a wedding ritual is considered all but
superfluous.
The principal marriage ceremonies have been derived from heathen customs;
they were: the _arrhae_, or espousal gifts, an earnest or pledge that
marriage would be concluded; and the ring betokening fidelity.
Among the ancient Hebrews marriage was not a religious ordinance or
contract, and neither in the Old Testament nor in the Talmud is it treated
as such.
As with the Mohammedans it was simply a civil contract.
Under the old Roman law there were three modes of marriage: 1.
_Confarreatio_, which consisted of a religious ceremony before ten
witnesses, in which an ox was sacrificed and a wheaten cake was broken by
a priest and divided between the parties.
2. _Coemptio in manum_, which was a conveyance or fictitious sale of the
woman to the man.
3. _Usus_, the acquisition of a wife by prescription through her
cohabitation with the husband for one year without being absent from his
house three consecutive nights.
But a true Roman marriage could be concluded simply by the interchange of
consent.
There was an easy morality of the olden times which according to present
standards was akin to savagery. The Greeks even in the golden age of
Pericles held the marriage relation in very little sanctity. It was
reputable for men to loan their wives to their friends, and divorce was
easy and frequent. Hellenic literature attempted to make poetry of vice
and marital infidelity, and adultery was the chief pastime of the gods and
goddesses.
The Romans had more of the moral and religious in their character than the
Greeks, but still we read of Cato the younger loaning his wife Marcia to
Hortensius and taking her back after the orator's death.
In the Second Chapter of the Gospel according to St. John we find that
Jesus was a guest at a marriage in Cana of Galilee. His attendance at the
wedding feast is not notable for His having on this occasion given the
marriage contract the character of a sacrament, for nothing in the record
even hints at this. The account is principally noteworthy as the history
of His first miracle, that of turning water into wine.
It was from the Fifth Chapter of the Epistle of St. Paul to the Ephesians
that the dogma that marriage is a sacrament was gradually evolved. In this
chapter the Apostle points out the particular duties of the marriage
status, and exhorts wives to obey their husbands, and husbands to love
their wives. "For this cause shall a man leave his father and mother, and
shall be joined unto his wife, and they two shall be one flesh."
However, the early Christian Church did not treat marriage as a sacrament,
although its celebration was usually the occasion of prayers and
exhortations.
It was not until the year 1563, by an edict of the Council of Trent, that
the oldest branch of the Christian Church, namely, that governed by the
See of Rome, required the celebration of marriage to be an essentially
religious ceremony.
The general marriage law of the European continent has been derived and
developed from the edicts of the Roman emperors and the decrees of the
Christian Church. This historical evolution is strikingly apparent when we
read the definition of marriage as given in the Institutes of Justinian:
_Nuptiae autem, sive matrimonium est veri et mulieris conjunctio,
individuam vitae consuetudinem continens_. Marriage is the union of a man
and a woman, including an inseparable association of their lives.
There are as many definitions of marriage as there are views concerning
it, but none of them improve very much upon that given in the Institutes.
It is also worth noting that the impediments to lawful marriage were very
nearly the same under the Roman Empire as they are to-day in most
civilized countries. The 18th Chapter of the Book of Leviticus appears to
have set the standard. There are three principal forms of marriage,
namely, monogamy, polygamy and polyandry. Monogamy, or the condition of
one man being married to but one woman at a time, appears to be not only
the best but the most ancient and universal type. It was, according to the
Bible, good enough for the first husband, Adam, for his only wife was Eve.
The first polygamist on the same authority was Lamech, who was of the
sixth generation after Adam, for he "took unto him two wives." Reading in
the First Book of Kings, we are informed that King Solomon had "seven
hundred wives, princesses, and three hundred concubines." A round
thousand. However, polygamy, or the marriage of a man to more than one
wife at the same time, was not the rule even among the ancient Hebrews.
Such a trial was left to kings and other luxurious persons.
Polyandry is the condition of a woman having more than one husband at the
same time. It evidently had its origin in infertile regions in the
endeavour to limit the population to the resources of the district. It is
almost a thing of the past, but it is still practised in Thibet, Ceylon
and some parts of India.
MORGANATIC MARRIAGE.--A morganatic marriage is a marriage between a member
of a reigning or nominally reigning family and one who is not of either of
such families. It is a term usually employed with reference to a
matrimonial alliance between a man of royal blood (or in Germany of high
nobility) and a woman of inferior rank.
Such alliances are sometimes called "left-handed marriages," because in
the wedding ceremony the left hand is given instead of the right.
In Germany a woman of high rank may make a morganatic alliance with a man
of inferior position. The children of a morganatic marriage are
legitimate, but neither they nor the wife can inherit the rank or estate
of the morganatic husband.
By the Royal Marriage Act of England such an alliance has no matrimonial
effect whatever.
DIVORCE.--Divorce is almost as ancient as marriage, and just as fully
sanctioned by history, necessity and authority. In the 24th Chapter of
Deuteronomy we read:
"When a man hath taken a wife, and married her, and it come to pass that
she find no favour in his eyes, because he hath found some uncleanness in
her, then let him write her a bill of divorcement, and give it in her
hand, and send her out of his house. And when she is departed out of his
house, she may go and be another man's wife." This rule was consistent
with the patriarchal system of the Jewish commonwealth. The husband as the
head of the family could divorce his wife at his pleasure. An illustration
of such a divorce is furnished by Abraham's dismissal or divorcement of
Hagar. This was surely a simple divorce law with a summary procedure, much
cheaper, quicker and easier than is given by the statutes of several
American States. No solicitor, barrister or court was required. The
husband constituted himself president of the Court of Probate, Admiralty
and Divorce for the special occasion and granted himself a favourable
decree. The law of divorce as stated in Deuteronomy continued to be
accepted by the Hebrews until the 11th century. It was in full force when
Christ was on earth, for it is recorded in the 19th Chapter of the Gospel
of St. Matthew that He was questioned concerning it. Jesus had given to
the Pharisees His views of marriage in answer to their question: "Is it
lawful for a man to put away his wife for _every_ reason?" He then stated
the proposition that because of marriage a man shall leave father and
mother, and shall cleave to his wife, and added: "What, therefore, God
bath joined together let not man put asunder."
Then was put to Him the question concerning the existing law: "Why did
Moses then command to give a writing of divorcement, and to put her away?"
His answer was that "Moses, because of the hardness of your hearts,
suffered you to put away your wives: but from the beginning it was not
so."
Jesus although disapproving of the breadth of the Mosaic law did not
declare against divorce; quite the contrary, for He said: "Whosoever shall
put away his wife, _except it be for fornication_, and shall marry
another, committeth adultery: and whoso marrieth her which is put away
doth commit adultery."
Unless we assume that Jesus was concealing rather than expounding His
views, the plain meaning is that He considered fornication to be the
sufficient and only cause for an absolute divorce.
Josephus interpreted the Jewish divorce law as follows: "He who wishes to
be separated from his wife for any reason whatever--and many such are
occurring among men--must affirm in writing his intention of no longer
cohabiting with her."
The ancient Jewish law made of woman a chattel and a marriage derelict at
her husband's pleasure, but it gave the woman no right to divorce her
husband for any cause.
The poet, John Milton, in the least worthy of his writings, relied upon
the Mosaic law in his specious argument in favour of unlimited divorce.
St. Augustine contended that the question of divorce is not clearly
determined by the words of Jesus, but there can be no mistake concerning
the theological attitude of the Roman Catholic Church of to-day on this
subject. It positively holds that no human power can dissolve a marriage
when ratified and consummated between baptized persons.
If one is prepared to concede the principal dogma of Roman Catholicism,
namely, the infallibility of the Church, there is no lack of logic or
authority in such an attitude, even though it differs or varies from the
Mosaic law or the sayings of Jesus.
We must remember, however, that modern divorce law is not founded on
theological dogmas or theories, but upon practical social science and
humanity.
In most countries there is no distinction between the husband and the wife
as to grounds of divorce. The Mohammedan law of Egypt and the statute laws
of Belgium and England being conspicuous exceptions to the rule. Usually
the domicile of the husband is the place where the action must be
instituted, but in the United States of America a wife may acquire a
separate domicile from that of her husband if he has given her cause for
divorce.
Divorces of domiciled foreigners are granted in several countries of
Europe, provided the cause relied on is a cause for divorce in the native
country of the parties, and in most continental countries divorces of
natives are granted, whether domiciled in their native country or not, the
foundation of jurisdiction being nationality, not domicile. Practically in
all countries the exercise of jurisdiction for divorce is not affected by
the fact that marriage was celebrated in or out of the country.
The causes for divorce are varied in kind and in number. In some countries
of Europe mutual consent is a sufficient cause under certain restrictions.
The number of causes for divorce in Europe vary from one in England to
twelve in Sweden.
The dream of the academic lawyer is for an international law of marriage
and divorce, but the differences between the existing judicial systems of
the various great commonwealths of the world are much too great to make a
universal law on the subject practicable. In one country only the civil
marriage is legal and in another only the ecclesiastical alliance is
valid; in one country divorce is allowed, and in another it is denied; in
one, difference in religion between the parties is an impediment to
marriage, and in another it is not; in one the canon law is controlling,
and in another the civil law regulates all questions of matrimonial
rights. Even in the matter of age and capacity the greatest variableness
exists. As, for instance, the minimum age for marriage. In England it is
fourteen for males and fifteen for females; in Germany, twenty-one for
males and sixteen for females; In Austria, fourteen for both; in Russia,
France, Holland, Switzerland and Hungary, eighteen for males and sixteen
for females; in Spain and Greece, fourteen for males and fifteen for
females; in Denmark and Norway, twenty for males and fourteen for females;
in Sweden, twenty-one for males and seventeen for females; in Finland,
twenty-one for males and fifteen for females; in Servia, seventeen for
males and fifteen for females.
It will be observed that the different laws as to the minimum age for
marriage do not flow from circumstances of climate, religion or culture,
but are mainly historical and arbitrary.