Marriage and Divorce Laws of the World Part 5

An action for a declaration of nullity of marriage for any cause cannot be maintained by parties to the marriage, or by the relations whose consent was necessary, when such marriage has been ratified or confirmed knowingly by those whose consent was necessary, or after a year has pa.s.sed since they acquired knowledge of the cause for an action without any application to the courts for relief.

Every marriage which has not been contracted publicly, and has not been celebrated before a competent public official, can be impugned by the parties themselves, by their fathers and mothers, by the ascendants, and by all who have an existing vested interest, as well as by the Public Prosecutor.

No one can legally claim the status of husband or wife, or the effects and privileges resulting by law from marriage, without the production of a certificate of the marriage celebration, except in the cases provided for by Article 46 of the code, namely, when no records have ever existed, or the same have been lost or destroyed. In such cases the marriage may be established by oral evidence.

The fact that by common repute the parties are married does not dispense with the necessity of producing the record of the celebration.

However, if there are children born of two persons who have lived openly as husband ind wife, and who are both dead, the legitimacy of their children cannot be a.s.sailed on the sole ground that a record of their parents' marriage is not produced.

A marriage which has been declared a nullity has, if contracted in good faith, the civil effects of a marriage so far as the parties themselves and their children are concerned. If only one of the parties has acted in good faith the legal consequences of marriage only exist in favour of the innocent party and of the children of the marriage.

The last two paragraphs, which are virtually a translation of Articles 201 and 202 of the Civil Code, are very important to foreigners who marry French citizens.

Until a court has p.r.o.nounced the marriage a nullity the marriage between a French citizen and a foreigner celebrated abroad is binding upon the parties, even though the exacting forms required by the French law have not been complied with.

If an Englishwoman in good faith marries a Frenchman in London she is ent.i.tled by French law to the civil rights of a wife, and her children the issue of the marriage would be considered legitimate, although the marriage had not been celebrated after the publication of banns in the manner prescribed by the code; or the record of such celebration transcribed within three months of the return of the French husband to France. The foreign wife would have the same rights even if she married a Frenchman under twenty-five years of age without the previous consent of his parents.

Of course, such a marriage could be declared null, leaving both parties free to marry again.

It must be always carried in mind that to const.i.tute a valid marriage under French law which cannot be impugned by anyone all the statutory conditions imposed by the Civil Code must be complied with.

HUSBAND AND WIFE.--Married persons owe each other fidelity, support and a.s.sistance. A husband owes protection to his wife. A wife owes obedience to her husband.

A wife is obliged to live with her husband and to follow him wherever he determines it proper to reside. A husband is obliged to receive his wife and to provide her with all that is necessary for the requirements of life, according to his means and condition.

A wife cannot bring a civil action without the consent of her husband, even if she is a public trader and is not married under the system of a community of goods and has separate property.

A wife cannot give away, convey, mortgage or acquire property, with or without a consideration, without her husband concurring in the doc.u.ment by which such transfer is made, or giving his written consent.

A woman cannot become a public trader without her husband's consent. It is not necessary for a wife to have her husband's consent to make a will.

MARRIAGE DUTIES.--The husband and wife are mutually bound to feed, support and educate their children.

Children are bound to support their parents and other ascendants who are in want.

DISSOLUTION OF MARRIAGE.--A marriage is dissolved:

_a._ By the death of one of the parties;

_b._ By a divorce p.r.o.nounced according to law.

SECOND MARRIAGES.--A woman cannot legally marry again until ten months have elapsed since the dissolution of her previous marriage.

DIVORCE

CAUSES FOR DIVORCE.--

1. Either party to the marriage is ent.i.tled to a divorce on the ground of the adultery of the other.

2. Either party is ent.i.tled to a divorce because of the cruelty or serious insults of the one toward the other. This includes not only such violent cruelty as endangers life, but all sorts of less serious a.s.saults. Any acts, words or writings by which one of the parties reflects on the honour and good name of the other furnish cause for a divorce.

3. The fact that one of the parties has been sentenced to death, imprisonment, penal servitude, transportation, banishment or loss of civil rights, and is branded with infamy, ent.i.tles the other party to a divorce.

That article of the Civil Code which provided for divorce by mutual consent, owing to incompatibility of temper, has been repealed.

DIVORCE PROCEDURE.--A party who wishes to inst.i.tute a proceeding for divorce must present the pet.i.tion personally to the President of the Court or to the judge who is acting in that capacity. If it appears that the pet.i.tioner is unable to attend in person the President of the Court or the judge acting as such is required to go, accompanied by his registrar, to the residence of the pet.i.tioner.

The judge, upon seeing and hearing the pet.i.tioner and after having made such comment as he may deem proper, will affix his order to the end of the pet.i.tion, directing the parties to appear before him on a day and at the hour then fixed, and will direct an officer to serve the citation upon the defendant.

It is within the judge's discretion to grant leave in the same order to the pet.i.tioner to reside separate during the pendency of the action from the defendant. If the pet.i.tioner be a wife, the judge may fix the place of her temporary residence.

The next step is that upon the day appointed in the citation the judge hears the parties in person. Upon such hearing it is the duty of the judge to do his best to conciliate the parties. In case the parties refuse to be conciliated, or the defendant defaults in appearance, the judge then grants an order certifying to the fact and giving the pet.i.tioner leave to issue a citation requiring the defendant to appear in court.

The judge has authority under the code to make such a provisional order respecting the payment to a wife of alimony during the action or concerning the temporary custody of the children as may be necessary and proper.

The case is prepared, investigated and judged in the ordinary form, the Ministere Public being heard. The Ministere Public is an official who performs similar duties to those of a King's Proctor in England.

The pet.i.tioner can at any stage of the case change the pet.i.tion for a divorce into a pet.i.tion for a judicial separation.

NEWSPAPER REPORTS.--The public press is forbidden under penalty of a fine of from 100 to 2,000 francs to publish the evidence in divorce trials.

EFFECTS OF DIVORCE.--Parties who have been divorced cannot become husband and wife again if either of them, after the divorce, have contracted a new marriage since the divorce and been divorced a second time.

If parties who have been divorced wish to become husband and wife again a new marriage is necessary. After such a remarriage no new pet.i.tion for divorce can be entertained for any cause, except that one of the parties since the remarriage has been sentenced to a punishment which involves corporal detention and is branded with infamy.

A divorced woman cannot remarry until ten months after the divorce has become absolute.

Where the divorce has been granted on the ground of adultery the guilty party can never marry the person with whom he or she was found guilty of the offence.

CUSTODY OF CHILDREN.--The custody of the children belongs to the party in whose favour the judgment of divorce has been p.r.o.nounced, unless the court in the interests of the children, upon the application of the family or the Ministere Public, directs that they be entrusted to the other party or to a third person.

Whoever may become ent.i.tled to the children's custody, the father and mother each retain their right to superintend the maintenance and education of their children and must contribute thereto in proportion to their means.

JUDICIAL SEPARATION.--The same causes which are sufficient to obtain a decree of divorce are sufficient to ent.i.tle the party to a separation from bed and board.

When a judicial separation has lasted three years the judgment can be changed into a decree of divorce upon the application of either party.

A judicial separation carries with it separation of property and restores to a woman her full civil rights, so that she may buy and sell and otherwise act as if she were a single woman.

CHAPTER VI.

ITALY.

MARRIAGE.--Marriage in Italy is governed in practically all its aspects and connections by the regulations contained in the chapter on marriage in the Italian Civil Code (_Il Codice Civile del regno d'Italia_), which went into effect in 1866. These regulations are for the most part the same as those of the French Code, upon which the Italian Code was directly based, the modifications in the Italian Code being mainly in the direction of greater specificness and greater stringency.