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 Bibliothèque 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
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
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
CHAPTER II.
England.
Introduction.—The law of England regards marriage as a contract, a status and an institution. As a contract it is in its essence an expressed consent on the part of a man and woman, competent to make the contract, to cohabit with each other as husband and wife, and with each other only. As Lord Robertson says: “It differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreement of parties, but are to a certain extent matters of municipal regulation, over which the parties have no control by any declaration of their will.”
As a status created by contract, marriage confers on the parties certain privileges and exacts certain duties under legal protection and sanction.
From the earliest period of the recorded history of England it has always been accepted doctrine that marriage as an institution is the keystone of the commonwealth and the highest expression of morality.
The men of the law in England were anciently persons in holy orders, and the judges were originally bishops, abbots, deans, canons and archdeacons. As late as 1857 the clergy in their ecclesiastical courts had exclusive jurisdiction of matrimonial causes. They administered the Canon Law of the Western Church affecting marriage and ruled that in marriages lawfully made, and according to the ordinance of matrimony, the bond thereof can by no means be dissolved during the lives of the parties.
By the passage of the Divorce Act of 1857 the jurisdiction in matrimonial causes was transferred to a new civil tribunal, and absolute divorce was sanctioned, with permission of remarriage on proof of adultery on the part of the wife, or adultery and cruelty on the part of the husband.
It is seriously contended by some eminent churchmen that in spite of this legislation the Church of England still has as its definite existing law the old rule which obtained before the Reformation, namely, that marriage is indissoluble; that a limited divorce from bed and board may be permitted, but that an absolute divorce which leaves either party free to remarry during the lifetime of the other is forbidden. This supposed conflict between the civil and ecclesiastical laws of the realm furnishes an academic topic and engenders bad feeling, but it has no real existence.
The Church of England exists by Act of Parliament and manifestly has no power to nullify statutes enacted by the legislature which established it as the official religious organization of the Kingdom.
The civil courts of England have never considered marriage as a sacrament or religious ordinance, but have held that the dogmas and precepts of Christianity do not affect the civil status of marriage, but simply add to it a religious character. In this respect the law of England is in exact harmony with the attitude of the primitive Christian Church.
Lord Stowell tells us that “in the Christian Church marriage was elevated in a later age to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import concerning it contained in sacred writings. The law of the Church, the canon law (a system which, in spite of its absurd pretensions to a higher origin, is in many of its provisions deeply enough founded in the wisdom of man), although in conformity to the prevailing theological opinion, it reverenced marriage as a sacrament, still so far respected its natural and civil origin as to consider that where the natural and civil contract was formed it had the full essence of matrimony without the intervention of the priest, it had even in that state the character of a sacrament; for it is a misapprehension to suppose that this intervention was required as a matter of necessity even for that purpose before the Council of Trent.”
The English courts only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement that it is a voluntary union of one man and one woman for life to the exclusion of all others, which is substantially the definition of marriage given by Lord Penzance in the leading case of Hyde v. Hyde.
No marriage is recognized which is founded on principles which are in conflict with the general morality of Christendom. The term Christendom is used as a matter of convenience only. It includes all those nations generally recognized to be civilized, whatever may be their prevailing religion.
Lex Loci Contractus.—It is a well-established rule that the law of the place where the contract of marriage was concluded, that is, the lex loci contractus, or, as it is sometimes termed, the lex loci celebrationis (law of the place of celebration), alone governs the court in ascertaining whether or not the marriage is regular. All the formal preliminaries, such as publication of banns, or license, and consent of the parties entitled to give or withhold consent according to the lex loci contractus, must be complied with.
Legal Age.—The legal age for marriage in England and Wales is fourteen for a male and twelve for a female. The consent of the father of each of the contracting parties is required of those under twenty-one. If the father is dead the consent of the mother is required unless there is a guardian appointed by the father.
Formal Requirements.—There are certain formal preliminaries to a valid marriage in England, such as the publication of banns, or the procurement of a common or special license which operates as a dispensation with the banns.
Banns.—The banns must be published on three Sundays in the parish in which the parties reside, and if they reside in different parishes the banns must be published in each parish. The marriage ceremony must be celebrated in one of the churches where the banns have been published. If they are published in two different parishes the clergyman of one parish must give a certificate of publication, which must be delivered to the clergyman who solemnizes the marriage.
The parties must reside in the parish for fifteen days prior to the publication of the banns, and the marriage must take place within three months of the last publication. Where a man has procured the banns to be published in false names, or has concealed his true name, he will not be allowed to annul the marriage on that account only. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage.
License.—No publication of banns is necessary in the case of a marriage under a bishop’s license. Licenses may be obtained at the offices of the bishop’s registrars, and full information as to procuring a license may be obtained through the local clergy. A license granted by a bishop is only available in his diocese, and one of the parties must have resided for fifteen days immediately preceding the issue of the license in the parish in which the marriage is to take place. The cost varies in different dioceses, but it is usually between £2 and £3. The Archbishop of Canterbury has power to issue a special license enabling a marriage to be solemnized at any time or place. The cost of this is from £20 to £30, and it can be obtained at the Faculty Office, Doctors’ Commons, London, E.C.
Certificate of Registrar.—A marriage by the certificate of the registrar of marriages
Registrar’s License.—A marriage by registrar’s license may take place either at his office or at a Roman Catholic or Nonconformist place of worship. Notice must be given by one of the parties to the superintendent registrar of the district in which he or she has resided for at least fifteen days, and he will then issue his license at the expiration of one day. The marriage can then immediately take place, or it may take place any time within three months. The cost is £2 14s. 6d.
No marriage license will be issued to parties, either of whom is under twenty-one years of age, unless one of the parties makes oath that the consent of the proper persons has been obtained, or that there is no person alive whose consent would ordinarily be necessary.
A marriage may be legally concluded without a marriage license if banns are duly published.
Hours for Marriage.—Marriages can only be solemnized between 8 a.m. and 3 p.m., except in the case of marriages by special license and Jewish marriages.
False Names.—Where both parties conspire to procure banns to be published in a false name or names or to practise a fraud with the object of obtaining a license the marriage may be annulled, but if the one party only is guilty the marriage will be valid.
Marriage by Reputation.—In most cases it is necessary to produce clear evidence of a marriage ceremony, but in some exceptional instances a marriage may be proved by long reputation—e.g., if two persons have lived together as man and wife for many years, and if they have always been regarded as such by their friends and neighbours, the Court will presume a legal marriage unless evidence is produced to prove that the parties were not lawfully married.
Certificates of Marriages—Marriage Lines.—A marriage certificate (marriage lines) can be obtained at the time of the marriage for 2s. 7d. If applied for subsequently the cost will be 3s. 7d. A certificate can be obtained at the church, chapel, synagogue or meeting house where the ceremony was performed, or at the General Register Office, Somerset House, or at the office of the superintendent registrar of the district where the marriage took place. The entry in the register at either of these places may be inspected on payment of 1s. A certificate of a marriage entered into in England or Wales prior to July 1, 1837, should be obtainable either from the registrar general or from the church where it was solemnized.
Impediments—Prohibited Degrees.
A man may not marry his:
1 Grandmother.
2 Grandfather’s Wife.
3 Wife’s Grandmother.
4-5 Father’s Sister, Mother’s Sister (i.e., aunt by blood).
6-7 Father’s Brother’s Wife, Mother’s Brother’s Wife (Uncle’s Wife, i.e., aunt by affinity).
8-9 Wife’s Father’s Sister, Wife’s Mother’s Sister (Wife’s Aunt).
10 Mother.
11 Stepmother.
12 Wife’s Mother (Mother-in-law).
13 Daughter.
14 Wife’s Daughter (Step-daughter).
15 Son’s Wife (Daughter-in-law).
16 Sister.
17 Brother’s Wife (Sister-in-law).
18-19 Son’s Daughter, Daughter’s Daughter, (Granddaughter).
20 Son’s Son’s Wife (Son’s Daughter-in-law).
21 Daughter’s Son’s Wife (Daughter’s Daughter-in-law).
22 Wife’s Son’s Daughter (Stepson’s Daughter).
23 Wife’s Daughter’s Daughter (Stepdaughter’s Daughter).
24-25 Brother’s Daughter, Sister’s Daughter (niece).
26-27 Brother’s Son’s Wife, Sister’s Son’s Wife (nephew’s wife).
28-29 Wife’s Brother’s Daughter, Wife’s Sister’s Daughter (niece by affinity).
A woman may not marry her: