CHAPTER I.

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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.

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