Marriage and Divorce Laws of the World Part 1

Marriage and Divorce Laws of the World.

by Hyacinthe Ringrose.

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 princ.i.p.al 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 a.s.sist 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 a.s.sociate. 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 pa.s.sed 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.

CHAPTER I.

INTRODUCTION.

Marriage is the oldest and most universal of all human inst.i.tutions.

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 inst.i.tution 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 inst.i.tution 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 G.o.d 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 j.a.pan a wedding ritual is considered all but superfluous.

The princ.i.p.al 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 fict.i.tious 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 sanct.i.ty. It was reputable for men to loan their wives to their friends, and divorce was easy and frequent. h.e.l.lenic literature attempted to make poetry of vice and marital infidelity, and adultery was the chief pastime of the G.o.ds and G.o.ddesses.

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 princ.i.p.ally 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 Inst.i.tutes 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 a.s.sociation 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 Inst.i.tutes.

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 princ.i.p.al 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 n.o.bility) 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 pa.s.s 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 ill.u.s.tration 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 const.i.tuted 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, G.o.d 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?"